Tribunal Criminal Tribunal for the Former Yugoslavia

Page 6755

 1                           Friday, 18 July 2008

 2                           [Motion Hearing]

 3                           [Open session]

 4                           [The Accused Gotovina and Cermak not present]

 5                           --- Upon commencing at 2.30 p.m.

 6             JUDGE ORIE:  Good afternoon.

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

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

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

10     the Prosecutor versus Ante Gotovina et al.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             We are here today in this case to have a hearing, as provided for

13     in Rule 54 bis, which is held because the Prosecution has filed an

14     application for an order pursuant to Rule 54 bis.  That was filed on the

15     13th of June, 2008, with quite a number of annexes.

16             The Chamber has received two recent submissions, one by the

17     Republic of Croatia and one by the Prosecution in response to that

18     submission.  Before we continue and before I give an opportunity to make

19     further submissions, having set out the main purpose of the hearing of

20     today, I would like to have the appearances.

21             Prosecution first.

22             MR. TIEGER:  Good afternoon, Mr. President, Your Honours.  Alan

23     Tieger, Steve Margetts, Katrina Gustafson, and case manager Donnica

24     Henry-Frijlink for the Prosecution.

25             JUDGE ORIE:  Thank you, Mr. Tieger.

Page 6756

 1             As far as the Defence teams are concerned, the Chamber was

 2     informed that the accused Cermak and Gotovina have expressed that they

 3     did not want to be present during this hearing.

 4             MR. MISETIC:  That is correct, Your Honour.  Luka Misetic and

 5     Greg Kehoe on behalf of General Gotovina.  For the record, General

 6     Gotovina has waived his right to be present for this hearing.

 7             JUDGE ORIE:  Thank you.

 8             Then for the Cermak Defence.

 9             MR. CAYLEY:  Yes.  Thank you, Your Honour.  Andrew Cayley and

10     Tihomir Mak for Mr. Cermak, and indeed, Mr. Cermak has also waived his

11     right to be present this afternoon.  Thank you.

12             JUDGE ORIE:  For Mr. Markac.  Then Mr. Kuzmanovic, Mr. Mikulicic.

13             MR. MIKULICIC:  Yes, Your Honour.  For Mr. Markac, Goran

14     Mikulicic and Tom Kuzmanovic, Vlado Randunic, case manager, and David

15     Gault, legal assistance.

16             JUDGE ORIE:  Yes.  And I see that Mr. Markac is present...

17             MR. MIKULICIC:  Yes.  Mr. Markac has expressed his wish to be

18     present this afternoon.

19             JUDGE ORIE:  Yes.  Then for the Republic of Croatia.  Mr. Krnic,

20     you are the ambassador of the Republic of Croatia in The Hague.  You are

21     here representing the Republic of Croatia and you are assisted by...

22             MR. KRNIC:  [Interpretation] Yes, Your Honour, that is correct.

23     To my left is Mr. Gordan Markotic.  He is the chief of the administration

24     for cooperation with international tribunals of the justice ministry of

25     the Republic of Croatia; and to my right is Mr. Ivan Crncec.  He's going

Page 6757

 1     to be my technical assistant, and he's the chief of the section in the

 2     same department of the justice ministry.  Thank you.

 3             JUDGE ORIE:  Thank you, Mr. Krnic.

 4             The Chamber wondered how to proceed today, especially in view of

 5     the rather extensive submissions that were made by the Republic of

 6     Croatia and by the Prosecution.  The Chamber doesn't think that it would

 7     be of great use to have everything repeated.  I immediately add to this

 8     that the -- both the submissions, to which I have not commented and I

 9     have made no reference yet to the content filed confidentially.

10     Therefore, if the parties want to discuss them, either we should agree on

11     the non-confidential character or we should move into private session.

12             MR. TIEGER:  I'm sorry, Your Honour.  Were you looking for a

13     submission about the general approach to be taken, or did you -- were you

14     indicating that at any given moment you wanted the parties to raise the

15     possibility of moving into private session?

16             JUDGE ORIE:  Well, it depends.  If we come to certain issues for

17     which apparently the Republic of Croatia or the Office of the Prosecution

18     has sought confidentiality, then of course, we should go into private

19     session unless the Prosecution or the Republic of Croatia does not insist

20     on confidentiality anymore.  And if we are dealing with matters which are

21     not at the basis of the confidentiality, then of course, we could

22     continue.  However, we have to verify -- Mr. Tieger, you know for

23     yourself what is essential -- essentially the reason why you sought

24     confidentiality.  So you can express yourself on that matter.  If,

25     however, you would like to deal with the submission of the Republic of

Page 6758

 1     Croatia, of course you should first verify whether that issue dealt with

 2     in the submission is something you could discuss in public.  The starting

 3     point, then, would be that you could not, but of course, on verification

 4     with the Republic of Croatia, that might be different.

 5             MR. TIEGER:  No, I quite understand, Your Honour, and I agree

 6     with what I understand as the general tenor of the Court's direction and,

 7     in fact, we filed confidentially at least in large measure because of the

 8     confidential filing of Croatia, I do believe that many of the submissions

 9     can be made public, but we didn't want to compromise their concerns

10     pre-emptively and filed for confidentially on that basis.

11             JUDGE ORIE:  Yes.  Then the information that is contained in the

12     submissions by the Republic of Croatia and by the Office of the

13     Prosecution is so -- is massive and, therefore, the Chamber, of course,

14     having received these submissions only recently doesn't feel that it

15     could go into any detail and further discuss these matters.  So for the

16     time being, the Chamber would like to give an opportunity, first of all,

17     to the Republic of Croatia, who is the responding party in these

18     proceedings, to add whatever you would like to add, perhaps to clarify

19     matters which apparently are contentious, seeing the submissions made by

20     the Prosecution.

21             I would then like to give a similar opportunity to the Office of

22     the Prosecution, unless the Office of the Prosecution would prefer to

23     first outline in general terms the request.  I don't know whether you

24     would feel any need to do that, Mr. Tieger.

25             MR. TIEGER:  No, Your Honour.  I'm happy with the Court's

Page 6759

 1     suggestion.  I just -- one point of clarification.  When the Court

 2     referred to the submissions of the Republic of Croatia, I take that to

 3     mean, but I wanted to make sure that that was the case, the document that

 4     was attached to the Prosecution's submissions that was tendered to the

 5     Prosecution this week.

 6             JUDGE ORIE:  I was referring to a document which carries as a

 7     stamp on the cover page "UN ICTY Zagreb liaison officer," received the

 8     15th of July and attached to your submission, Mr. Tieger; and we find

 9     also attached a translation, an unofficial translation, into English.  It

10     is the document which carries a number -- it is dated 14th of July, 2008.

11     The entry number is 514-09-01-08-75, and it's addressed to the ICTY

12     liaison office, Mr. Thomas Osorio, head of the office.  That's the

13     document I'm talking about, and I take it THAT all parties have -- are

14     aware of this document.

15             Then finally, of course, Defence teams.  A few things have

16     already been submitted in relation to this request for an order.  First,

17     to deny it in limine; also, the issue of whether the admissibility of any

18     material produced as a result of this order would be admissible evidence.

19     That is an issue I'd like not to discuss today.  I'd like to discuss the

20     content, rather, the response by the Republic of Croatia.

21             And I specifically invite you, Mr. Krnic, also to address the

22     subsidiary requests made by the Prosecution.  I don't know whether I

23     still have to list them for you, but the Prosecution asked, apart from

24     providing within 50 days the documents requested; also, alternatively, to

25     make all the documents obtained available to the Prosecution for

Page 6760

 1     inspection; to provide the Chamber with a complete list of all documents

 2     in possession of the Croatian authorities; to provide the Chamber with a

 3     report detailing the specific investigative steps and the results of

 4     these steps; and finally, to continue the investigation.

 5             Mr. Krnic, may I give you first an opportunity to add, to

 6     emphasize, to clarify the position of the Croatian government.

 7             MR. KRNIC: [Interpretation] Your Honours, this is a place from

 8     which it would be uncomfortable to speak when I'm standing.  Would it be

 9     permissible for me to continue to speak and still be seated?

10             JUDGE ORIE:  Yes, please do so.

11             MR. KRNIC: [Interpretation] Thank you very much.

12             First of all, Your Honour, one remark relating to the eventual

13     open or closed sessions that you referred to earlier.  We completely

14     agree with your approach, meaning that if in the course of my address we

15     come to such a situation relating to the documents, we will suggest

16     moving into closed session.

17             In respect of your main request, I would like to say the

18     following:  Why are we here today?  We are here to use concrete arguments

19     to repeal assertions by the Prosecution and the lack of foundation made

20     by the Prosecution request to issue a binding order in relation to

21     requests 723 and 739, also known as requests for the provision of

22     "topnistvo" diaries or artillery diaries as well as actions of the

23     Croatian special police.  We are convinced that the request by the

24     Prosecution is unnecessary, and it's not functional in terms of the

25     proceedings and, as such, without foundation.

Page 6761

 1             The Republic of Croatia does not have a single reason to -- not

 2     to hand over the documents sought by the Prosecution if the authorised

 3     bodies of the Republic of Croatia could locate these same documents in

 4     our archives.  We believe, furthermore, that finding the requested

 5     documentation - and as you will hear later, a part of that documentation

 6     has been found in the meantime - would go in favour of the arguments that

 7     we are stating, and that is that during the war operations that are being

 8     discussed on the part of the Croatian army and the police, there were no

 9     violations of laws of -- and customs of war.  So where is the actual

10     problem then?

11             Before providing a direct answer to that question, please permit

12     me to make a few brief observations which are very important in reaching

13     a decision on whether a binding order should be issued in respect of the

14     Republic of Croatia or not.  Since its inception at this Tribunal, the

15     OTP has presented Croatia with 790 various requests to date.  The

16     Republic of Croatia has responded satisfactorily in 788 such requests.

17     So what remains are only two partially unresolved requests by the

18     Prosecution, and they are these that we are discussing today, and I

19     underline that this is just partially unresolved.

20             The Republic of Croatia has handed over to the Prosecutor's

21     office since the beginning of our mutual cooperation until today 19.500

22     different documents containing over 100.000 pages only in the section

23     that concerns the Croatian defence ministry.

24             I would like to add the following:  The Office of the President

25     of the Republic of Croatia also furnished the OTP with 666 different

Page 6762

 1     transcripts; and what is also generally known is that within the same

 2     cooperation, the Republic of Croatia has met all of its obligations

 3     relating to the hand-over of accused.  Along with that, the Republic of

 4     Croatia directly opened its archives, and - I underscore - made direct

 5     access possible to members of the OTP, which is also the case in this --

 6     in these proceedings, in this case.  The above-referred-to facts can

 7     serve as proof of so-called full cooperation of Croatia with the ICTY,

 8     and this has been repeatedly asserted and affirmed by the chief

 9     Prosecutor Carla del Ponte before various international bodies, and these

10     assertions have also been made by Judge Meron and Judge Pocar in their

11     capacity as Presidents of the ICTY, and they have referred to the

12     successful cooperation of Croatia with this Tribunal.

13             On the other hand, the Prosecutor's office will, as the grounds

14     for its assertion on non-cooperation, probably referred to an official

15     note dating from 1999, in which the Republic of Croatia did not accept

16     for a brief period of time such cooperation in relation to the Storm

17     military action because at that time the Croatian parliament had reached

18     such a decision which the government was absolutely duty-bound to follow.

19     But the Prosecution will probably skip over the fact that after that, in

20     2000, a parliamentary declaration was adopted on the cooperation of the

21     Republic of Croatia and the ICTY, according to which the cooperation was

22     affirmed and, as I mentioned earlier, was implemented in a constructive

23     way.

24             Therefore, the assertion by the OTP made in this case cannot

25     stand that the Republic of Croatia constantly from 1996 until now has

Page 6763

 1     been obstructing cooperation with the ICTY and that non-provision of the

 2     requested artillery diaries and other documents in this specific case

 3     forms a part of this obstruction, because of which a binding request or

 4     order is necessary and, also, informing the Security Council and other

 5     bodies about this non-cooperation.

 6             In relation to this specific request by the Prosecution, it's

 7     true that the Republic of Croatia is encountering certain problems, and

 8     problems are of the following objective nature:  In reference to the

 9     so-called artillery diaries, because these military wartime documents

10     were not adequately maintained because of the conditions prevailing at

11     the time and because of some failings in this aspect in our archives, it

12     has not been possible until now to find all the requested documents.

13     Probably, it doesn't exist or some of it doesn't exist in our official

14     archives, but the Prosecutor's office is insinuating, in a way, that

15     these documents have deliberately been taken away or concealed.  We

16     cannot accept such accusations.  These accusations are something that we

17     most forcefully reject.

18             In order to dissuade the Prosecutor's office about these

19     assertions and the sense of theirs, we have opened an internal

20     investigation in the course of which scores of people have been

21     interviewed; and the result of that investigation was that a considerable

22     number of documents were found, which have in the meantime, a few days

23     ago, been handed over to the Prosecutor's office.  The investigation that

24     was initiated is still continuing.  It's an internal investigation and is

25     providing much better results than the case would be had we had initiated

Page 6764

 1     regular criminal proceedings via the Prosecutor's office of the Republic

 2     of Croatia and because we have fewer obstructions in this way in the

 3     circles in which -- on which the investigation is focusing.

 4             Our objective at this stage is to establish where the chain of

 5     possession of these documents -- or the chain of possession of these

 6     documents and the activities of the responsible persons.  So criminal

 7     proceedings at this phase would include all the familiar processing

 8     mechanism, dead-lines, and other means which would enable us to find

 9     these documents, which would also be the primary interest of the

10     Prosecution.

11             So the initiation of this investigation, which is obviously

12     yielding good results, and when continued to do that in realistic terms,

13     naturally, is the best proof of the decisiveness of the government to

14     fulfil the requests that have been put.  Of course, the Prosecution is

15     interpreting this differently, as a reason more to issue Croatia with a

16     binding order because it only seems to be acting under pressure so that

17     only a binding order would force it to fulfil the relevant request.  That

18     is why we believe that this Trial Chamber will know how to assess and

19     evaluate the true facts properly and to take into account all the details

20     of our mutual cooperation in the process.

21             When I'm talking about the artillery diaries, I would like to add

22     something more.  The OTP constantly says that these artillery diaries are

23     essential and they're a crucial part of the indictment referring to

24     excessive shelling.  I have major doubts in terms of this.  If these

25     diaries - which are still not there - are crucial for the Prosecution,

Page 6765

 1     what is the basis and the grounds for issuing this particular point in

 2     the indictment anyway?  How come that the Prosecution first issued this

 3     particular count in the indictment and only then proceeded to seek

 4     evidence and grounds for such an indictment --

 5             JUDGE ORIE:  Mr. Krnic, the indictment against the three accused

 6     has been confirmed on the basis of prima facie evidence by the Tribunal.

 7     So therefore, I don't think at this moment we should discuss whether the

 8     Prosecution has brought this indictment.  If the Prosecution considers

 9     the documents crucial, that could be for the reason that apart from the

10     evidence available that additional documentary evidence could further

11     support the Prosecution's case; and it is not at this moment, I think,

12     subject to discussion whether or not this expression in the submissions

13     by the Prosecution should lead to conclusions as you suggest would be

14     right conclusions.

15             You may proceed.

16             MR. KRNIC: [Interpretation] Thank you very much.

17             The situation is somewhat similar in relation to documents on the

18     special police.  Investigations were carried out, and the documents

19     requested by the OTP had very specific numbers, registration numbers.  So

20     that has to do with that part of the request made by the Prosecution;

21     because yet again, the OTP marked this as crucial, essential, extremely

22     important for proving that particular count in the indictment.  And then,

23     it so happens that this documentation refers to peripheral matters,

24     procuring food, clothing, et cetera.  You will receive more detailed

25     information about this somewhat later, Your Honours.

Page 6766

 1             Your Honours, in conclusion of my introductory remarks, I would

 2     like to propose that the Trial Chamber reject the request made by the

 3     Prosecution and to allow the authorities of Croatia to continue their

 4     investigation and to continue looking for the documents in the

 5     above-mentioned way; that is to say, to continue the investigation that

 6     has started yielding positive results and that will primarily be in the

 7     interest of fairness, justice, and the just conclusion of these

 8     proceedings and, therefore, in the interest of the OTP as well.

 9             May I point out yet again that with regard to this particular

10     legal case, the Republic of Croatia has been cooperative, consistent, and

11     sincere.  This Trial Chamber knows that in the same proceedings we took

12     the same attitude with regard to orders made to have documents issued to

13     different Defence teams as well as the OTP.

14             Finally, I would like to ask you to give the floor to my

15     colleague, Mr. Gordan Markotic, who will give you some very specific

16     information in support of the points I have made.  He will show to you in

17     a very convincing way that the possible issuing of a binding order on the

18     Republic of Croatia is unnecessary.  Thank you.

19             JUDGE ORIE:  Mr. Markotic.

20             MR. MARKOTIC: [Interpretation] Thank you, Your Honour.

21             I would like to state the position of the Republic of Croatia in

22     respect of the request made by the OTP to have a subpoena issued.  I am

23     not going to repeat everything that has already been stated in the

24     documents that we provided on the 14th of July.  However, it is necessary

25     to explain parts of this response that we provided as well as to refer to

Page 6767

 1     some other circumstances that are going to give a more complete picture

 2     to the honourable Trial Chamber so that they can establish the actual

 3     situation with regard to this request of the OTP.

 4             Perhaps I will speak at length, but bear with me because I

 5     believe this is necessary in order to understand parts of the request of

 6     the OTP.

 7             At the very beginning, the OTP states in its request that from

 8     November 2006 the Republic of Croatia has not been providing the

 9     artillery diaries requested as well as documents of the military police.

10     It is true that in November 2006, or to be more precise, on the 10th of

11     November, 2006, Croatia did receive a request from the OTP, number 719,

12     requesting access to archives of the Ministry of Defence and the Ministry

13     of Foreign Affairs.  What was done in response was allowing investigators

14     of the OTP who stayed in Croatia in January and in April and several

15     other times in the course of 2007; however, the first request was

16     received on the 15th of May, 2007 - 723 is the number of the document -

17     whereas the submission of documents, of documents of the special police,

18     was requested on the 27th of June, 2007, for the first time, and 739 is

19     the number of that document.

20             I think it is necessary to point that out in order to understand

21     what the time sequence was in respect of certain requests that were made

22     and responses that were provided to them.

23             As for insight into the archives of the Republic of Croatia, what

24     is mentioned is that the Croatian authorities restricted access and

25     insight into archives, unnecessarily limiting examinations of documents

Page 6768

 1     and also requesting advance requests to have access to archives and

 2     certain documents.  We believe that on the whole this is incorrect.

 3     Namely, from the very outset these were not unilateral restrictions by

 4     the state authorities of the Republic of Croatia; rather, the modalities

 5     of gaining insight into Croatian state bodies were agreed upon with the

 6     representatives of the OTP.  As a rule, they were not opposed to those

 7     modalities.  Namely, they agreed that the officials in the archives also

 8     have working hours; that they cannot be at their disposal 24 hours a day;

 9     also, that archives cannot take in a large number of investigators at one

10     point in time; and also, that there has to be a procedure that has to be

11     observed in terms of accessing the archives and making the examination of

12     documents as efficient as possible.

13             I would like to point out today that under the same conditions

14     that were confirmed in terms of examining archives with the

15     representatives of the OTP were applied in respect of Defence teams for

16     accused persons in this case.

17             I think it is also important to say that at one point in time we

18     did try to have archives officials available 24 hours a day so that in

19     this way we would yet again show our good will and cooperativeness in

20     respect of the OTP.  However, perhaps at one point the OTP was even in a

21     more favourable position than the Defence teams.  However, this system of

22     work simply could not function that way, and the representatives of the

23     investigation teams staying in Croatia agreed with that.

24             The last thing that was agreed upon was that investigators be

25     granted access to the archives in the following way, that they be shown

Page 6769

 1     all the registers from a given state body; and then on the basis of these

 2     registers, they request documents that are of interest to them.  After

 3     requesting these documents, the archives officials would bring them

 4     binders or maps containing the required documents.  Additionally, what

 5     was made possible was for the investigators to enter the archives

 6     premises to see from which particular place those documents were taken,

 7     and perhaps they could look left or right and see whether they needed any

 8     other documents too.  That is how this functioned, insight into the state

 9     archives of the Republic of Croatia.

10             I just want to point out once again that absolutely nothing was

11     hidden from the investigators within the scope of our possibilities.  We

12     offered the requested documentation to the investigators, of course, if

13     the documents were in the archives in the first place.  As for the

14     artillery diaries, annex C of the request pertains to the request for

15     them, and it is stated specifically there that on the basis of the

16     assessments made by the OTP, the Ministry of Defence and the Republic of

17     Croatia have not submitted at least 328 documents consisting of a total

18     of 943 pages of documentation.  What we find confusing in this case is on

19     the basis of what this estimate was made and how can this estimate be

20     that specific.  How can they envisage even the number of pages of these

21     documents that have not been seen and no one knows whether these

22     documents actually exist or not?  When looking at the existing registers

23     of documents, the existence of the requested documentation has not been

24     established.

25             Furthermore, the Ministry of Defence pointed out in all their

Page 6770

 1     contacts with the investigators - and I think that that should be noted

 2     now as well - is that the fact that some documents are not in the

 3     archives is caused first and foremost by the lack of training and

 4     education on the part of some military officers of the Croatian army who

 5     were supposed to keep documents and to hand them over, but also it is due

 6     to the state of war in which the units operated when often the security

 7     and safety of documents was neglected in order to carry out the military

 8     operation itself as efficiently as possible.  After all, in these

 9     proceedings some UN officers already stated that they found at certain

10     localities documents of the Croatian army.  So we believe that in this

11     way our assertions are not as impossible as the OTP claims.

12             Another thing that is important to point out is that an analysis

13     was made at the Ministry of Defence, and it shows that the OTP bases its

14     estimates on a very small number of documents, namely, for part of the

15     artillery units that were operating in the area of responsibility of the

16     Split Military District.  It is for that reason that they infer that the

17     same kind of documents had to be produced in other units too.  However,

18     for certain reasons we believe that these assumptions are off-handed

19     ones, and they have not been supported by any documents; rather, there

20     have been no registers showing that such documents were listed.

21             As for these documents concerning artillery operations, there is

22     also a reference to 14 documents which Croatia has already provided to

23     the OTP.  On the basis of 14 provided documents, they mentioned that they

24     are still missing, and we find this a bit perplexing; we don't know how

25     this happened.  Of course, we are prepared to send those 14 documents yet

Page 6771

 1     again, but I would like to remind the OTP that this happened under 723

 2     and these are operative reports that the Operations Group Sibenik

 3     submitted to the Split Military District.

 4             As for the special police, the OTP insists on 204 documents with

 5     exact numbers.  These documents were requested and marked by

 6     investigators when they visited the archives of the Ministry of the

 7     Interior.  When checking these archives, first of all, part of the found

 8     documents were sent in accordance with request 19 -- or rather, there

 9     were 19 documents out of the 204 that were asked for.  And further on in

10     the ministry, through the efforts made by the ministry, we found an

11     additional 66 documents from this list of 204 documents, and that means

12     that the total number of documents submitted was 99; that is to say that

13     105 are still missing.

14             As for the relevance of this documentation, we can agree with the

15     OTP that these are not relevant documents; however, I repeat that these

16     are documents that were marked by OTP investigators who stayed in

17     Croatia.  These are documents that pertained to unimportant matters like

18     thank-you letters, training of divers, refunds of expenses, and so on and

19     so forth, that is to say, documents that are truly unimportant.  However,

20     we are therefore even more perplexed by this claim made by the OTP that

21     these are 204 documents that are essential for proving General Markac's

22     culpability.  The situation's the same with the 105 documents that have

23     not been submitted.  As we went through the registers, we saw what the

24     numbers were, and we realized that out of these 105, 20 refer to

25     personnel characteristics and deployments of members of the special

Page 6772

 1     police; 16 to the organization of different courses and advanced

 2     training; 14 to the allocation of materiel and technical resources; 6 to

 3     other matters; 17 to various payments.  So out of 105, 72 or 70 percent

 4     are documents of this nature.

 5             As for the other part of the request for submitting special

 6     documentation, and these are all the documents that pertain to documents

 7     received by the office of Markac and Sacic, or rather, the documents that

 8     were sent from these offices to third parties, so far we have submitted

 9     41 documents pertaining to General Markac and a total of 325 documents

10     pertaining to Mr. Sacic.

11             An objection was raised to the effect that we submitted

12     irrelevant documents, but these are documents that are of the same nature

13     like the 204 that the OTP requested.  At the same time, the OTP is

14     challenging the sending of all orders, maps, and other documents

15     pertaining to artillery and special police in the period from the 3rd of

16     August until the 10th of August, 1995, including the list of targets that

17     every artillery unit received, or the chief of artillery, as well as

18     documents that have to do with the positioning of all artillery units

19     including the firing range.  I'm quoting this.  These are professional

20     expert documents.

21             As for 17 -- 719 (B) dated the 15th of January, 2007, this has to

22     do with Operation Storm, and in this document, in this analysis, what is

23     mentioned is the number of mortars, cannons, howitzers, and missiles that

24     were used and also the number of projectiles, or rather, the amount of

25     ammunition spent.  Also, within 546 as far back as the 7th of January,

Page 6773

 1     2004, that is to say four and a half years ago and even more than that,

 2     the following documentation was sent to the OTP:  The operations plans of

 3     the sectors of the special police that pertain to Operation Storm;

 4     reports of the sector of special police written during the first four

 5     days of Operation Storm; the reports and orders signed by General Markac;

 6     and the same kind of orders signed by General Sacic; and also the war

 7     diary of the forward command post of Gracac; the sector of the special

 8     police; and also the report on tasks carry out on the 25th of August,

 9     1995, sent by General Markac to General Cervenko --

10             THE INTERPRETER:  Interpreter's note:  Could the speaker be asked

11     to read slower.

12             JUDGE ORIE:  It is general experience here that if you read that

13     your speed of speech goes up and the interpreters ask you to slow down

14     when reading.

15             Please proceed.

16             MR. MARKOTIC: [Interpretation] I apologise, Your Honour.

17             Report on executed assignments for the 25th of August, 1995, that

18     I mentioned; intelligence reports on internal control of the special

19     police sector dated the 1st of July, 1995, to the 15th; as well as

20     reports of the intelligence and communications centres or resumes of

21     security events from the 1st of July until the 1st of November from

22     numbers 319 on.  We believe that a part of the documentation that the OTP

23     still considers outstanding have actually been furnished with this

24     request from the -- dated 2004.

25             I would also like to mention that Annex (E) of the OTP of Request

Page 6774

 1     739 refers to the fact that this request has not been implemented at all,

 2     but actually, the real situation is a little bit different.  Annex (E)

 3     comprises Supplement 1 and Supplement 2.  Supplement 1 is on page 2 and 4

 4     and Supplement 2 from page 7 to 14.  In their request for a subpoena, the

 5     OTP did not mention that Supplement 2 has completely been provided on the

 6     26th of July, 2007, and with some documents from Supplement 1 and

 7     additional documents, which the investigators of the OTP marked when they

 8     were inspecting the archives of the MUP.  But they did they request them

 9     officially in their Request 739, but they did request these documents.

10             In reference to the missing documents which have still not been

11     handed over, investigations have been initiated, and they have been going

12     on for some time now.  The investigations began from the bottom up

13     because that is how the authorised body of the Ministries of Defence and

14     the Ministries of Internal Affairs believed they would be the most

15     effective.  The investigation in the Ministry of Defence notwithstanding,

16     the OTP said that they tried to speak with 15 highly ranked officials of

17     the ministry who refused to be interviewed.

18             I have to note that this was a request of the Prosecution from

19     the 17th of December, 2007, in which these 15 highly ranking officials

20     were referred to as suspects, even though I have to admit because I was

21     at the office at the time it was not clear to us how you could designate

22     a suspect in December 2007 when the UN Resolution 1503 said that all the

23     investigations had to be completed by 2004.  We did act pursuant to the

24     request by the OTP, and we did deliver summons to these 15 officers who,

25     using their right as suspects to refuse to be interviewed, actually did

Page 6775

 1     so.

 2             Later, according to -- pursuant to an agreement between the OTP

 3     and the Defence and shortly before the interviews were to take place, the

 4     request of the Prosecution in relation to these persons were modified,

 5     and it was agreed that they could be interviewed as witnesses.

 6             I also wanted to respond to assertions by the OTP that General

 7     Sundov confirmed, who was actually interviewed in the capacity of a

 8     witness, confirmed that the documents sought by the Prosecution should be

 9     in the central military archives.  This assertion by the Prosecution is

10     just partially true.  General Sundov actually said that the documents

11     were to have been handled pursuant to the regulations in force and that

12     he was convinced that the bulk of the documents were registered and

13     handed over to the central military archive.  But he explicitly said that

14     he could not rule out the possibility that individuals abused their

15     access to the archive, kept documents to themselves, and said that he was

16     speaking only about that part of the documentation that he was

17     responsible for as commander of the Knin Military District.

18             On that occasion, he mentioned the problem of badly trained

19     particular or individual personnel members in the Croatian military,

20     which was actually only in the process of being formed at that time.

21     However, I have to mention that investigators at the defence ministry did

22     interview 44 persons -- actually, 20 persons, while 44 persons were

23     interviewed at the Ministry of the Interior.  Therefore, during the

24     investigation into the missing documents, a total of 64 persons were

25     interviewed, and I think that this number speaks for itself, and it

Page 6776

 1     proves that investigations were not carried out in such a way as to

 2     deliberately prolong them or to avoid interviewing certain persons.

 3             As part of the investigations, especially in the defence

 4     ministry, and since OTP staff before came out with objections that we

 5     were unable to find some maps about war activities during Operation Storm

 6     which were published in books of certain high-ranking officers of the

 7     Croatian army, interviews were conducted with persons who were directly

 8     involved in the preparation of two books which are actually the most

 9     important ones and which contain most of the documents.  These are books

10     "Sve Moje Bitke," "All My Battles," a book by General Bobetko, and the

11     book by General Gotovina, "Assault, Battles, and Operations," "Napadajni

12     Bojevi i Operacije" of the HV and the HVO.  In both cases, persons were

13     interviewed who were directly involved in the work on the book as experts

14     and who confirmed that the maps published in the books were drafted

15     later, especially for the purposes of work on the books; and now these

16     are the maps that we can actually see in the books themselves.

17             If I may summarize, the investigations, they were conducted from

18     the bottom up; and as you can see, a large number of persons were

19     interviewed.  Some key persons have already been interviewed or are being

20     interviewed about whom the Prosecution also believes that they are key

21     persons; the investigations are continuing, and interviews are planned

22     with everyone that is relevant for the purposes of the investigation in

23     order to establish the actual state of affairs and to establish the

24     truth.

25             His Excellency Mr. Krnic said that Requests 739, 723 have

Page 6777

 1     partially been met.  In reference to Request 723, as I already said,

 2     documents that were not found were not handed over but that 14 documents

 3     were actually handed over but which are still considered outstanding.

 4             In reference to Request 739, it needs to be said that the request

 5     also included Supplement 1 and Supplement 2 and that Supplement 2 has

 6     been implemented in its entirety.

 7             As for Supplement 1, it contains eight items, and only Items 1

 8     and 2 have partially not been executed and Item 5.  As for Items 3 and 4,

 9     which relate to records of documents drafted in the office of General

10     Sacic, unfortunately, the register -- document registers have not been

11     found, and so the request was of a descriptive nature.  And pursuant to

12     that request, we furnished 325 different documents, and I already

13     referred to that earlier.

14             As for the part of the request by the OTP that relates to

15     intelligent actions from -- intelligence actions from 1996, relating to

16     obtaining documents on actions in Bosnia and Herzegovina, and linking

17     these actions with alleged intentions of the Croatian authorities not to

18     provide documents relating to the Storm action in the same way, I really

19     am unable to find any fact that would link these two activities; and for

20     that reason, I'm not going to comment on this at all.  I'm not going to

21     comment on the assertions made in the request.

22             One of the key documents that the OTP refers to is the official

23     note from the 28th of July, 1999, on a meeting held at the Ministry of

24     Justice, which official note was drafted by five officers of the defence

25     ministry.  First, I would like to object to the term used in the request,

Page 6778

 1     the English term used, "minutes," because these are not actually minutes,

 2     but it's an official note, in fact.  So the term "official note" or

 3     "report" would be much more suitable.  In any case, the term "minutes" is

 4     inappropriate.  The term "minutes" would lead to the conclusion that the

 5     controversial assertions in the official note are actually conclusions,

 6     which, however, is not the case.

 7             I repeat, it's a note signed by five officers, where it is stated

 8     that it has been concluded that documents would not be provided that

 9     would refer to the state policy of the Republic of Croatia, it would not

10     be furnished to the Prosecution, of course, or rather, the orders by

11     General Norac and General Gotovina.  The note also states that the person

12     conducting the meeting, deputy justice minister at the time, would inform

13     the Council for Cooperation with The Hague Tribunal about the meeting

14     itself and the conclusions.  At the time, the council was the highest

15     organ in the Republic of Croatia entrusted with cooperation with the

16     ICTY.

17             This is just an impression on the part of the person who compiled

18     the note is tellingly demonstrated by the fact that this was never - and

19     I repeat - never discussed at meetings of the Council for Cooperation

20     with The Hague Tribunal.  Because had that been the case, first of all,

21     it would have been registered in one of the minutes of the council; and

22     secondly, we are sure that the OTP would not omit to deal with these

23     minutes as stated in paragraph 50 of their request, Footnote 28.

24             Also, at paragraph 52 that refers to this meeting, we think that

25     the then-deputy minister of justice is dealt with in an inadequate way.

Page 6779

 1     In 2006 and in 2007, she headed the Office of Cooperation with The Hague

 2     Tribunal.  At that time the former chief Prosecutor, Carla del Ponte,

 3     submitted reports to the Security Council of the United Nations in which

 4     she pointed out the cooperation of the Republic of Croatia, which was

 5     generally on a satisfactory level with the OTP.  Therefore, it is unclear

 6     how she could have done that if the actual state of this cooperation was

 7     the way the OTP refers to it in its request.

 8             Your Honours, now we get to the confidential annexes, N, O, and

 9     P.  So I would kindly ask that we move into closed session for a moment

10     for this purpose.

11             JUDGE ORIE:  We move into ...

12                           [Trial Chamber and registrar confer]

13             JUDGE ORIE:  Mr. Markotic, private session would, I take it, meet

14     your concerns, private session meaning that whatever is said is not to be

15     made public, although still the public can see who is in the courtroom,

16     what happens in the courtroom.  If you would have any concerns that

17     someone would start lip-reading when you speak, then we could give

18     further instructions as not to show your face when you're speaking.  If

19     you insist on that, usually we -- usually in order to protect the content

20     of the hearing we move into private session.  But if you think that

21     that's not enough and that by looking at your face people could, then,

22     identify what you said, then I'll instruct the technical staff not to

23     show your face on the screen.

24             As you wish.

25             MR. MARKOTIC: [Interpretation] Your Honour, there is no need to

Page 6780

 1     have my face protected; and if I lower my head too often, then you will

 2     realize I am taking into account what you said just now.

 3             JUDGE ORIE:  Yes.

 4             Another matter, Mr. Markotic, is that before we move into private

 5     session that we are close to a point where we would have to have a break,

 6     anyhow.  Could you give us any indication as to how much time you would

 7     still need?

 8             MR. MARKOTIC: [Interpretation] Well, Your Honour, five or ten

 9     minutes.  That is what I would need in order to finish my remarks.

10             JUDGE ORIE:  Then I suggest that since we had a late start, we

11     also have a somewhat later break, that you would then now continue; but

12     for our interpreters and transcribers, I would have to be confident that

13     you really can finish in five to ten minutes.

14             Then we move into private session.

15                           [Private session]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 6781











11  Pages 6781-6785 redacted. Private session.















Page 6786

 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                           [Open session]

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

22             JUDGE ORIE:  Thank you, Mr. Registrar.

23             Mr. Tieger, please proceed.

24             MR. TIEGER:  Thank you, Your Honour.

25             Your Honour, I believe Mr. Markotic invoked the previous

Page 6787

 1     Prosecutor's name in connection with impressions about the level, degree,

 2     and nature of cooperation of the Croatian authorities.  I think it's

 3     informative to appreciate that in 2000, she addressed the Security

 4     Council and indicated her hope that all problems would be completely

 5     removed but noted in particular that when it comes to matters of where

 6     Croatia perceives cooperation to implicate its national interests, the

 7     level of cooperation and degree of satisfaction is different; and that

 8     has, indeed, surfaced repeatedly and characterizes much of the

 9     relationship between our requests for assistance and the responses.

10             Now, that is not to say, of course, that it's the -- it has been

11     the Prosecution's claim in its submissions that a level of stonewalling

12     equivalent to what existed in the period between approximately 1996 and

13     2000 persisted in its entirety.  Indeed, had that been the case the

14     repeated assurances by the Croatian authorities to the Office of the

15     Prosecutor that the documents we sought were being investigated, that

16     sincere efforts were underway to locate those documents would and could

17     only have fallen on deaf ears.  But we continued to work with Croatian

18     authorities in the expectation that their efforts would indeed be

19     meaningful --

20             THE INTERPRETER:  The interpreters kindly ask that all

21     microphones not in use be switched off.  Thank you.

22             MR. TIEGER:  -- and sincere.

23             And in that respect, I must note that it was unexpected to hear

24     the assertion that the Prosecution's estimate in Annex C of the

25     approximate number of pages of artillery documentation that would have

Page 6788

 1     been created and has not been produced is speculative because no one

 2     really knows whether these documents actually exist or not.  The

 3     Prosecution's request for those documents, as the Croatian authorities

 4     well know, was grounded on essentially a three-fold rationale, which was

 5     identified in our submissions and clearly identified to the authorities,

 6     number one, that those documents were a pre-condition for an artillery

 7     assault, particularly one of this scale; number two, the guide-lines

 8     prescribed the documentation that is required; and number three, the

 9     exemplars that we do possess reflect the compliance with those prescribed

10     guide-lines.  For example, the submission by the Republic of Croatia

11     mentioned the 112th Brigade.  This is a map of that brigade.  This is the

12     kind of document that we say has to be produced, was produced, and should

13     have been presented to us, and yet all too few have been, all too few,

14     which indicate a systemic and systematic problem rather than an

15     inadvertent one.  And indeed, when we presented Croatian authorities

16     initially with these circumstances, they acknowledged that the documents

17     should exist, and that is precisely why the investigations were

18     undertaken.  Now, we've identified some of the problems with the

19     investigation.  I'm afraid that this reflects another basis for the

20     failings of that investigation, and that is apparently an underlying

21     assertion that the documents they purport to look for do not even exist.

22             We've asked the Court in our recent submission to look at the

23     nature of that investigation, and indeed, we did so before; but I think

24     it's important for the Court to examine what's happened recently because

25     as we indicated in our submission, a number of factors clearly indicate

Page 6789

 1     the basis for the Prosecution motion and the need for the Court's -- for

 2     the order that is requested in the application, and that is the flurry of

 3     activity that preceded this hearing and that followed the application as

 4     well as the nature of the investigation that was undertaken.  As we've

 5     indicated, much of the investigative efforts were devoted to simply

 6     replicating steps that had already been undertaken and need not have been

 7     performed:  examining the archives, which we had already been advised had

 8     been exhausted; in other words, our repeated and thorough search revealed

 9     only the documents that we had obtained.  We were told by the appropriate

10     authorities that they were unaware of any other documents in the

11     archives, and yet that is one of the pillars of the ongoing

12     investigation.  Similarly, the search for a determination about whether

13     or not documents, artillery documentation, of this type would have to be

14     produced, notwithstanding the fact that Croatian authorities have been

15     previously informed and were informed, indeed, in our motion of the basis

16     for the conclusion that such documentation and at such a level would

17     necessarily have to have been produced.

18             We've also cited some of the other factors that indicate the

19     quality and character of the ongoing investigation.  That includes the --

20     not only those who were interviewed and those who were not interviewed,

21     but the nature of the questions that were asked and the nature of the

22     questions that were not asked of those persons who were interviewed

23     during the course of the investigation.

24             Perhaps most significantly, Your Honour, is what has been

25     completely ignored, not only during the course of the investigation as

Page 6790

 1     we've asserted but, indeed, during the course of this hearing, and that

 2     is that the most single likely explanation for the systematic absence of

 3     the documentation has been utterly overlooked, and the Croatian

 4     authorities continue to turn a blind eye to the most likely source of the

 5     absence of the documentation in the Croatian archives if that is indeed

 6     the case.  And that is the lengthy, systematic, government-run cover-up

 7     of documentation that threatened the perceived national interests of

 8     Croatia during the period between 1996 and 2000, and we've outlined some

 9     of those efforts to the court.  Those were the efforts that were

10     undertaken under the guise of various operations known as Operation or OA

11     Hague, OA Put, OA Arhiv, and it's important for the Court to understand

12     the almost military -- well, it was, indeed, military precision because

13     these were conducted under the auspices of the Ministry of Defence and

14     the foreign intelligence service, operations which, as indicated in a

15     document sent by the assistant minister of defence for security and

16     information to the then-president of Croatia, involve such things as

17     gathering, processing, and protecting documentation that threatened

18     Croatian indictees or potential indictees or Croatian national interests

19     because those were perceived as -- they said explicitly, as ultimately

20     potentially being linked to the top leadership; operations that engaged

21     in efforts, and I'll quote, "When HVO archives became a serious problem

22     in the course of preparation of General Blaskic's defence with respect to

23     the substance of the subpoena and ICTY's requests involving HVO

24     officials, this service in cooperation with the HIS took action and

25     measures to protect the HVO archives."

Page 6791

 1             And there are documents which demonstrate how - again, with

 2     military precision - in contrast to the claim that inadvertence or

 3     clumsiness or lack of training resulted in the absence of documentation

 4     were gathered up and were transferred from central Bosnian archives to

 5     Croatia, and thereafter, their existence was denied.  And when the ICTY

 6     and the OTP made requests for those documents, they were denied.

 7             Those efforts included providing direct protection to people who

 8     were the subject of indictments, that is, hiding them; it included

 9     planting agents in the ICTY and secreting original documents from the OTP

10     for counter-intelligence purposes; and it included planting stories in

11     the media in the hope of embarrassing the ICTY.  Those are just some of

12     the factors involved and part of the systematic effort to prevent

13     documentation deemed harmful to Croatian indictees or potential indictees

14     or the Croatian national interests from coming to the attention of the

15     ICTY.  And yet, despite the fact that we are aware of this because of

16     documentation that came from Croatian authorities - and they are fully

17     aware of this operation and, indeed, it's been published in the

18     media - you don't hear one word about any effort in the course of these

19     investigations to pursue the most obvious lead of all.

20             JUDGE ORIE:  Mr. Tieger, what you just said, is that still

21     focusing mainly on the period until 2000 or -- because you started saying

22     1996 to 2000, and then you gave, well, some strong allegations.  Would

23     you say that the focus and the emphasis is on that period or --

24             MR. TIEGER:  I'd like to make our position clear, Your Honour.

25     It is crystal clear that those efforts were engaged in between 1996 and

Page 6792

 1     approximately 2000.  What happened thereafter, I cannot assert with the

 2     same level of confidence, and I would not do so.  What I do know and what

 3     the OTP does assert is the following, that either those efforts have

 4     continued or if they have not, Croatian authorities are currently turning

 5     a blind eye to the fact that they occurred and are wholly unwilling to

 6     pursue those people who engaged in those efforts in the past.  Now, one

 7     of the reasons we went into closed session and one of the reasons the

 8     document that was -- the documents that were the subject of the closed

 9     session discussion were presented to the Court is because they suggested

10     that some of the efforts that had previously been undertaken might

11     persist.  I'm not making that allegation, but what I do say is the longer

12     this investigation goes on -- the longer the investigation did go on

13     without any effort to address that reality, the more it suggested

14     acquiescence, either acquiescence with those previous efforts or

15     essentially sliding into precisely the same effort.

16             And in that regard, Your Honour, I'd like also to address the

17     1999 minutes which have been mentioned.

18             JUDGE ORIE:  Annex M?

19             MR. TIEGER:  Sorry, Your Honour.  Just one moment.

20             JUDGE ORIE:  You're referring to Annex M to the motion?

21             MR. TIEGER:  I believe so that's correct, Your Honour.

22             JUDGE ORIE:  Yes.

23             MR. TIEGER:  The assertion has been made, and I think -- I'm

24     focusing for the moment on those minutes because in some respects they're

25     particularly telling about the nature and character of the ongoing

Page 6793

 1     investigative efforts.  The assertion was made that those -- the

 2     recording of that set, the conclusions from those minutes, are

 3     meaningless because they were never discussed at meetings of the Council

 4     for Cooperation; and therefore, I think the suggestion was made to the

 5     Court that they're some form of speculation and are untrustworthy for

 6     that reason.

 7             As it happens, however, two days later, on July 30th, 1999, there

 8     was a submission to the Office of the Prosecutor by Dr. Zvonimir

 9     Separovic, the then-minister of justice, in which we see the

10     implementation of a large number of the conclusions from the July 28,

11     1999, meeting; and I'll provide the Court with the July 30th submission.

12     But what the Court will see is that Item 1 of the submission by

13     Mr. Separevic, that is, the provision of documentation concerning

14     proceedings against Momcilo Perisic conform to Item 2 of the official

15     note; Item 2 (a) - and I'll go through them quickly because perhaps the

16     precise -- the particulars of those won't be so significant and the Court

17     will be able to make its own comparison - also conforms to Item 1 of the

18     official note; item 2 (b), information on criminal proceedings before the

19     Osijek county court, conform to Item 3 of the official note; item 2 (c)

20     conforms to Item 4 and so on.

21             THE INTERPRETER:  Please slow down for the interpreters.  Thank

22     you.

23             MR. TIEGER:  And in any event, Your Honour, the -- it was

24     interesting in particular to hear reference to meetings of the Council

25     for Cooperation.  We'll submit to the Court some of those meetings, but

Page 6794

 1     let me recite some of the discussions which indeed did take place at

 2     those meetings.

 3             At the 31st session of the Council for Cooperation held on

 4     October 28th, 1998, there was reference to the fact that Croatia is

 5     actually forced to get into the story of war crimes committed by the

 6     Croatian army, and the ICTY requests such evidence, and the only thing to

 7     do is to negate the right of the Tribunal to process such crimes; also,

 8     reference to the fact that "our aim" is to actually postpone the

 9     incrimination.  At the 32nd session on October 30th, there was reference

10     to the fact that if the council -- or if Croatia dropped the claim that

11     no armed conflict exists, despite the fact -- despite the skepticism

12     about the validity of that claim registered repeatedly by people at those

13     meetings -- well, to drop that, then they would have to answer ICTY

14     requests for plans, movement of troops, et cetera.  And "We have already

15     concluded that we did not want to give them that and that is why we went

16     for the unarmed conflict strategy."

17             And at the 33rd session --

18             JUDGE ORIE:  Mr. Tieger, do we have to go into -- it's clear that

19     you're quite critical about what happened then, and you say you have some

20     material about that, whereas to some extent the representatives of the

21     Croatian government have said that there has been a certain period of

22     time -- I think let's focus on today -- it's clear that you have a

23     different memory of what happened in the past and that you can more or

24     less offer and say, We have material to support that.

25             MR. TIEGER:  Then let me focus in conclusion, Your Honour, on

Page 6795

 1     something that just happened, and that was the investigation into those

 2     28 July 1999 minutes and the interview of people in attendance.  As you

 3     will note from the submission, those --

 4             JUDGE ORIE:  It's clear that those who were there said this does

 5     not reflect what --

 6             MR. TIEGER:  Correct.

 7             JUDGE ORIE:  Yes, that's --

 8             MR. TIEGER:  And more --

 9             JUDGE ORIE:  -- in brief.

10             MR. TIEGER:  And moreover, those conclusions couldn't have been

11     reached because there was nothing but good-will to turn over documents

12     and cooperate with the ICTY.

13             JUDGE ORIE:  That's -- that is as good and as bad of an argument

14     as any self-fulfilling prophecy.  It can be true; it cannot be true.

15             MR. TIEGER:  Well, it's not true in particular, Your Honour,

16     because one of those persons in attendance was someone who was pivotal in

17     the efforts I described earlier, who was assigned responsibility by the

18     assistant minister for defence in charge of security and information, for

19     protecting -- for gathering and protecting documents and keeping them

20     from the ICTY, and who met in fact with General Blaskic and informed him

21     about the rationale that would be used in saying that -- when gathering

22     up all the documents, protecting them, and then saying to the ICTY, We

23     have no documents.  And that in just one moment of the investigation

24     reveals why the Court's intervention is necessary and why the application

25     should be granted.

Page 6796

 1             JUDGE ORIE:  Yes.  This was in your submission.  Yes.

 2             MR. TIEGER:  Your Honour --

 3             JUDGE ORIE:  It was in your written submissions, your --

 4     reference was made to that, as well, isn't it?

 5             MR. TIEGER:  That's correct, Your Honour.

 6             JUDGE ORIE:  Yes.

 7             MR. TIEGER:  And I would be more than happy to supply the Court

 8     with the documentation that -- the more specific documentation I just

 9     referred to.  And finally, I am available for any questions the Court

10     might have, but I wanted to fill my estimate of time.

11             JUDGE ORIE:  Thank you, Mr. Tieger.

12             Mr. Misetic.

13             MR. MISETIC:  Thank you, Your Honour.

14             Mr. Tieger has raised a point, and I believe I should go directly

15     to the evidence that's in before the Trial Chamber, addressing

16     specifically the point that the Trial Chamber should conclude that the

17     most likely explanation is that there is a cover-up, and if I could ask

18     the registrar to please pull up D152, which is in evidence.  It was

19     subsequently made a 92 ter submission by the Prosecution.  It is the

20     witness testimony of UNMO officer Alexander Tchernetsky.  The specific

21     portion of the transcript wherein the Prosecution made this statement in

22     92 ter submission can be found at the transcript page 3164 starting at

23     line 1, and if we could turn to page 6 in the English of Mr.

24     Tchernetsky's testimony.

25             Starting at the bottom, Your Honour, Mr. Tchernetsky told this

Page 6797

 1     Trial Chamber:  "Sometime in September 1995, together with another

 2     military observer from our sector, I went on patrol, and we wanted to try

 3     to get to Grahovo in order to monitor the situation and the dislocation

 4     of the Croatian troops there.  Not far from Grahovo, we were stopped at

 5     the check-point and were not allowed to proceed further.  We turned the

 6     car and took another road.  Some 2 kilometres south-east from V. Mracaj

 7     we found the former commanding post" --

 8             JUDGE ORIE:  Mr. Misetic, are you drawing our attention to the

 9     fact that matters were left behind and found, which already is part of

10     the submission by the Government of Croatia, isn't it?  They refer to the

11     evidence in this court, and that supports that records was not -- were

12     not kept, and they even --

13             MR. MISETIC:  I wasn't aware --

14             JUDGE ORIE:  I have to look at it, but I think it was in the most

15     recent --

16             MR. MISETIC:  If it did, Your Honour, I only received a copy of

17     that submission this morning, and I have not had the time to go through

18     it, but I am referring -- I was unaware of it, so I haven't read their

19     submission.  We weren't served a copy with it until it was appended to

20     the Prosecution's response this morning.

21             JUDGE ORIE:  Reference was made at least to -- but it's clear you

22     wanted to draw our attention to the evidence which says that everyone was

23     not always guarding its documents as you would expect them to do.

24             MR. MISETIC:  Well -- that's the first point.  The second point

25     is I have a vague recollection, although I'm not positive of this, but

Page 6798

 1     that there was some inquiry - and I'm not sure if it's part of the trial

 2     testimony; it could be part of a supplemental information sheet - that

 3     Mr. Tchernetsky was asked, and the Prosecution has tried to locate the

 4     documents in the UN archives; and similarly, the Prosecutor's office is

 5     having trouble recovering documents from the UN archive.  I don't think

 6     the Prosecution has made the assertion that because the UN's own archives

 7     from this period are - and I will state from our own investigation - in a

 8     somewhat chaotic state, that the most likely explanation would be, of

 9     course, that there is a cover-up within the UN.

10             Your Honour, I can state as someone who is also working on trying

11     to find relevant documents here that, indeed, it has been our experience

12     that the archives in the Croatian state archive are not in a perfect

13     state.  There are missing documents, and we have had to work around that

14     problem.

15             I would also just like to add that -- two points.  One is that to

16     the extent that there is an allegation being made that there is a

17     cover-up to protect General Gotovina.  Obviously, we reject that

18     assertion.  I think we can for the sake of argument say that the level of

19     cooperation in this case between a state and one of its own accused has

20     been probably a model at this Tribunal.  And finally, with respect to a

21     procedural matter for future, a problem that arises in this context, and

22     specifically concerning what the Republic of Croatia is doing in the

23     field, whatever the Trial Chamber decides to do there is the problem that

24     some of the people that the Croatian police are now interviewing are

25     witnesses of the Defence.  To the extent that the Croatian government has

Page 6799

 1     a legitimate interest in conducting an investigation to recover its own

 2     state documents, obviously, we have no objection or problem with that.

 3     We would be concerned, however, that to the extent that those police

 4     investigations go outside the scope of looking for documents and start

 5     going into matters concerning their assistance to the Defence - in

 6     particular, work product, because some of these people as referenced in

 7     the submission were artillery officers - we are preparing documents with

 8     them for the purposes of this litigation, and we believe that those

 9     documents should in no way be submitted either to the Croatian

10     authorities or to the Office of the Prosecutor to the extent they are

11     documents that have been created since 2006, let's say, for purposes of

12     this litigation, and there should be specific instructions on how far

13     that investigation should go because we would consider that to be work

14     product under Rule 70, us working with our own witnesses.

15             JUDGE ORIE:  Yes.  That is an interesting issue which needs

16     further thought, to say the least.

17             MR. MISETIC:  Yes, and that's why I wanted to raise it right now,

18     Your Honour.  It's a concern that I had.

19             JUDGE ORIE:  It's on the record.  It's on the record.

20                           [Trial Chamber confers]

21             JUDGE ORIE:  We have a -- quite a complex of detailed

22     information.  We might not be able to digest everything immediately;

23     therefore, it might be too much.  Nevertheless, focusing on some of the

24     main lines, I would have a few questions.

25             The first question, Mr. Krnic, is the following:  In your

Page 6800

 1     introductory observations, you said, Well, when we were not during a

 2     certain period of time as cooperative as one -- as we are now and as we

 3     could be expected to be, you said, But Croatian parliament decided that

 4     this would be the course.  I wondered, it's a legal issue, whether

 5     Croatian parliament could take any decisions that would relieve the

 6     Republic of Croatia of its obligations under international law.

 7             MR. KRNIC: [Interpretation] Your Honour, what I said I would now

 8     like to clarify.  The Croatian Assembly or the Croatian parliament, in

 9     its resolution on cooperation with the ICTY in Den Haag, in its decision

10     of the 5th of March, 1999, set out from the assumption or decision, I

11     quote, that:  "In view of the legitimacy of the anti-terrorist actions on

12     one's own state territory, and we're talking about the military action

13     Flash and Storm, the Croatian Assembly believes that individual crimes

14     committed in connection with that are a matter exclusively for the

15     Croatian justice system."

16             In such historical moments, and now we're talking about 1999, the

17     Croatian state did not recognise the jurisdiction of the International

18     Criminal Tribunal for the former Yugoslavia over these two military

19     operations, considering them to be conflicts of an internal nature.  In

20     its declaration on cooperation with the International Criminal Tribunal

21     for the former Yugoslavia in The Hague of the 14th of April, 2000, the

22     Croatian parliament stated, I quote, that:  "The Republic of Croatia does

23     not bring into question the right of the Tribunal to establish

24     responsibility for crimes committed during and immediately after the end

25     of the homeland war and will insist that the International Criminal

Page 6801

 1     Tribunal in its proceedings processes all of those responsible for war

 2     crimes on the territory of the former Yugoslavia."

 3             So this was a legal and political question, and I'm speaking

 4     about 1999 again.  The impunity of those who committed the crimes was not

 5     something that was being considered, but the belief was that these crimes

 6     would be exclusively in the jurisdiction of the domestic courts.

 7             JUDGE ORIE:  Yes, I do understand, and to some extent you have

 8     answered my question in -- to some extent in the affirmative, that where

 9     the limits of the jurisdiction of this Tribunal are you say is for the

10     Croatian parliament to decide and not for the Tribunal.  That's more or

11     less the implicit message in such a -- in such a decision.  But let's

12     not -- I just wanted to -- since you briefly referred to the Croatian

13     parliament reaching a decision, you said, which the government was

14     absolutely duty-bound to follow.

15             Now, I have one other question.  Perhaps, Mr. Markotic, you are

16     the one who could answer that.  You have given us a number of 64

17     interviews, a lot of names we find in your submissions of the persons

18     being -- that have been interviewed or are still to be interviewed or

19     whose interviews are still to be continued.  Could you tell us what

20     was -- have you recorded the dates of those interviews?  Because

21     apparently, one of the issues raised by the Office of the Prosecution is

22     that you became active only at a certain stage.

23             Could you tell us, when was the first of these 64 interviews

24     you're referring to, when was that conducted and ...

25             MR. MARKOTIC: [Interpretation] Your Honours, this is the

Page 6802

 1     situation with the interviews.  The Ministry of Internal Affairs

 2     interviewed 44 people, and 20 were interviewed in the defence ministry.

 3     In the defence ministry, 40 informative talks were conducted until

 4     February 2008, a few months before the Prosecution requested that a

 5     binding order be issued.  The other interviews were conducted after June

 6     2008 when another 18 persons were interviewed at the defence ministry and

 7     4 people at the Ministry of the Interior.

 8             We said before that information talks were conducted at the

 9     Ministry of Defence, but we didn't mention the names of those who were

10     interviewed.  In our document of the 14th of July, which you will have an

11     opportunity to see, all the names are reported and the times of the

12     interviews.  We also have reports or notes recording all of those

13     interviews and up to February -- of all conversations, interviews

14     committed up to February 2008.

15             JUDGE ORIE:  Yes.  Have you provided the Office of the Prosecutor

16     with the reports or the summaries or the transcripts, whatever is there,

17     of these interviews?

18             MR. MARKOTIC: [Interpretation] We informed the Prosecution that

19     the interviews had been conducted and, in brief, the results of these

20     interviews, but we did not furnish them with the actual transcripts of

21     those interviews.

22             JUDGE ORIE:  Yes.  Would you have any problem in doing so?

23     Because it seems that there is a rather tense situation between a lack of

24     trust in your honesty, to say the least, by Mr. Tieger, whereas you say,

25     We stress that we do sincerely our utmost best to reach the best possible

Page 6803

 1     results.  Would this be a matter which you could share with Mr. Tieger?

 2             MR. MARKOTIC: [Interpretation] Of course, some of those

 3     transcripts would first need to be looked over and then provided, but the

 4     OTP didn't ask for the transcript but for the status of ongoing

 5     investigations, to which we responded.  Of course, I am sorry that there

 6     is a certain degree of distrust on the part of the OTP, but again, as we

 7     heard from Mr. Tieger this is based on the period before 2000.  Now we're

 8     in 2008, and we can provide this.  Of course, we need to receive the

 9     appropriate request from the Prosecution, and then we would be able to

10     provide this.

11             JUDGE ORIE:  I didn't hear Mr. Tieger say that it was based

12     exclusively on the period until 2000.  He has explained that

13     sufficiently, I would say, but I appreciate that you refer to a period on

14     which he extensively sought to inform the Chamber.

15             There is another matter.  We have looked in private session to

16     the -- to two documents that were provided to us by the Office of the

17     Prosecution.  You've commented on those.  We after that, and we were not

18     familiar with that, we heard about a written explanation of what that

19     material was aiming at or at least the -- what was described in this --

20     in these documents, what these activities were aiming at.  Here in this

21     courtroom, the status of these documents have been subject to some

22     discussion.  They have been put to us; they have been commented upon.

23     Would you have any problem in the Chamber considering the issue, best

24     efforts against not-good-enough efforts, because that seems to be part of

25     discussion, that we look at that material?  Would you have any problem

Page 6804

 1     with that?  But then, of course, we would like to look at the material to

 2     the comments you've given in private session, also to look at the written

 3     explanation, and of course, we've heard the interpretation of this

 4     material by Mr. Tieger.

 5             Would that meet any objection by the Government of Croatia if we

 6     would look at all this material?

 7             MR. MARKOTIC: [Interpretation] Your Honours, in closed session we

 8     discussed two documents that are referred to in Annexes N and P of the

 9     Prosecution's request, and I exclusively referred to them when I spoke.

10     Since we're talking about copies of the documents that are now accessible

11     to the Court, I assume that there will be no problem to show the

12     originals, if necessary, of those copies that have been provided.  Of

13     course, they're identical.  I will still need to consult with the agency

14     that drafted the documents, but we can furnish all the documents that I

15     referred to when I cited the documents, and that is actually the response

16     or the responses of Croatia to the requests from the OTP that I mentioned

17     to carry out similar activities as requested in the incriminating

18     document from Annex P of the request for the issuance of the binding

19     order.

20             JUDGE ORIE:  Well, of course, the Chamber would not oppose if you

21     would send us documents, requests you received earlier from the

22     Prosecution you referred to.  However, the focus of my question was,

23     these two documents we discussed, these are the annexes - let me just

24     check them again - it's O and P, Annexes O and P to the initial request,

25     whether we look at that in order to -- as part of our preparation in

Page 6805

 1     reaching a decision; that's one.  And then we would then invite

 2     Mr. Tieger, also, to provide us with what apparently is a written

 3     explanation about the oral explanation.

 4             Mr. Tieger, I'm a bit hesitant because if it's not recorded,

 5     audio-recorded, I mean, then, of course, you would get perhaps

 6     information which might not be shared by all those who took part in such

 7     conversations, but at least to have a look at the written explanation the

 8     Croatian government has given to the OTP about these two annexes, O and

 9     P.

10             MR. MARKOTIC: [Interpretation] Your Honour, it seems to me that

11     along with Annexes O and P we're talking about this official note, as

12     well, that Mr. Tieger referred to today, and in relation to that he

13     mentioned the statements made by some Croatian officials in 1999.

14             As regards these annexes, O and P, there are two documents of the

15     Croatian intelligence agencies that we will try to submit, of course in a

16     manner that we will agree upon with you, Your Honour.

17             JUDGE ORIE:  My problem -- you're referring to these documents.

18     We are not -- at this moment, we are mainly interested in considering the

19     content rather than to receive original documents.  If you say what was

20     attached as O and P, the content is the same as we find in the original,

21     then we're not insisting on having the originals.

22             MR. MARKOTIC: [Interpretation] Your Honour, the content of these

23     original documents is the same like what is contained in the confidential

24     annexes.  I oriented myself -- similar requests of the OTP, and the

25     agency acted in the same way.  The documents are the same, originals, and

Page 6806

 1     from the annex.

 2             JUDGE ORIE:  Yes.  So we don't have an authenticity problem in

 3     relation to the Annexes O and P to the Prosecution's motion.  That's

 4     clear.

 5             Then we would then ask Mr. Tieger to provide us with the

 6     explanation given by the -- you refer to the written explanation given by

 7     the Croatian government.

 8             Then another matter raised.  Mr. Tieger, Mr. Markotic says -- you

 9     asked for documents being very important, and then although we have not

10     provided all of them, now we have provided at least some of them, and you

11     say they are of hardly any importance.  That's part of -- I summarize of

12     course.  Do you have a response to that, where you, I think, qualified

13     all the documents as either relevant, highly important, that those

14     produced now are dealt with as not of great importance?

15             MR. TIEGER:  I think that's dealt with in the submission, Your

16     Honour, in this sense and in two ways.  The relevance of a document is --

17     before it's seen is identifiable by its date, source, intended recipient,

18     general nature.  The issue here, as far as the OTP is concerned, is our

19     request for a large number of documents and our receipt of a relatively

20     small number of those -- small percentage of those documents, and those

21     documents that we do receive appear to be of relatively peripheral

22     significance.

23             Now, that's significant on its face, I submit, and it's also

24     particularly significant in light of the pattern of conduct we can see

25     from the documents relating to the treatment of these materials in the

Page 6807

 1     past, and that is there were explicit directives to provide the OTP or

 2     the ICTY with material that was of a relatively harmless nature and

 3     didn't implicate the national interests of Croatia.

 4             JUDGE ORIE:  Again, that's -- I'm not saying that the past is

 5     irrelevant, but that's at least in its full explicit form.  That's -- we

 6     are looking back a few years from now.  Because you also -- you used one

 7     argument, saying that -- well, if you think that or if you claim the

 8     documents do not exist, it comes as no surprise that if you start looking

 9     for them that you don't find them.  You use that as an argument as in the

10     context of bad faith.

11             Now, I asked myself --

12             MR. TIEGER:  Or, Your Honour, bad faith or the -- I guess,

13     commitment to the effort.

14             JUDGE ORIE:  Yes -- well, no commitment to the effort, of course,

15     is a form of bad faith, perhaps, as well.

16             Now, I asked myself if someone believes that a document doesn't

17     exist and he doesn't start looking for it, then he'll be blamed not

18     looking for it.  Now, if he says, I don't think it exists but

19     nevertheless, I'll start looking for it; the argument then is, Well, no

20     wonder that you don't find it because you believe they don't exist.  So

21     therefore, you must have been looking not seriously for them.  I'm just

22     asking myself how fair that reasoning is.  Could you comment on that?

23             MR. TIEGER:  Well, Your Honour, I would point the Court in a

24     somewhat different direction, and that is when there is a solid basis for

25     asserting that the documents exist, and I tried to articulate that on the

Page 6808

 1     basis of the guide-lines and so on, and your interlocutor initially

 2     agrees that that reasoning is sound and the exemplars you receive

 3     demonstrate that that reasoning is sound, then a reversal of that

 4     position strikes me as significant.

 5             And Your Honour, if I could raise one minor point.  I want to

 6     dispel any misimpression that the Prosecution wasn't interested in the

 7     investigations.  We undertook a mission in May, in fact, to find out what

 8     was happening with the investigations and as much as we could learn about

 9     what had been done and were explicitly told that we couldn't get that

10     information because it was precluded by law.  So if that's not the case,

11     that's a good thing; but the fact that we don't have -- we didn't have

12     information about the investigations prior to the recent submission was

13     not the product of any lack of interest or lack of effort but despite

14     that interest and effort.

15             JUDGE ORIE:  Thank you, Mr. Tieger.

16                           [Trial Chamber confers]

17             JUDGE ORIE:  If there's anything you'd like to briefly add to

18     what has been said, you have an opportunity to do so, but let's try to

19     limit it, Mr. Krnic, to not more than three to four minutes.  But if you

20     say everything has been said what should be said, then we'll conclude

21     this hearing.

22             Your microphone is still open, and although it's not translated

23     to us, everyone could hear it.

24             MR. KRNIC: [Interpretation] Your Honour, we absolutely stand by

25     all the assertions we made here.  We underline, once again, that we spoke

Page 6809

 1     openly, sincerely, and without any ulterior motives.  We are also aware

 2     of the following, and that is the problem, and that is shown by what the

 3     Prosecutor said today unequivocally.  The Prosecutor does not want to

 4     admit that the additional efforts that we have made have contributed to

 5     the finding of certain documents and that we have the best of intentions

 6     of continuing down that road.  And then, to ask for a binding order, this

 7     objectively brings into the question the efforts that are already being

 8     made.  Why?  Because the Prosecutor is insisting on criminal charges

 9     against certain persons.  Criminal prosecution has a lawful course of its

10     own; it is only going to slow down the efforts that we're making right

11     now.

12             If I were to say anything else in terms of Croatia giving

13     countless examples of good-will, in terms of cooperating with the

14     Tribunal, that is, that would just be repetition.  Therefore, I would

15     like to end my remarks on that note.  Thank you.

16             JUDGE ORIE:  Thank you, Mr. Krnic.

17             This concludes this hearing.

18             Mr. Krnic, Mr. Markotic, and Mr. Crncec, I'd like to thank you

19     very much to have come to this hearing and present the position of the

20     Republic of Croatia.  This Chamber would find it more difficult to make

21     determinations if it would not have heard the views of the state

22     concerned.  Therefore, thank you very much for coming.

23             We adjourn and we will resume Monday, not for you but for the

24     case itself.  We'll resume on Monday, the 21st of July, at 9.00 in the

25     morning in courtroom I.

Page 6810

 1                           --- Whereupon the hearing adjourned at 5.31 p.m.,

 2                           to be reconvened on Monday, the 21st day of

 3                           July, 2008, at 9.00 a.m.