Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10859

 1                           Thursday, 30 October 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness entered court]

 5                           --- Upon commencing at 9.08 a.m.

 6             JUDGE ORIE:  Good morning to everyone.

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

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

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

10     Prosecutor versus Ante Gotovina, et al.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             Ms. Gustafson, I was informed that you'd like to make a

13     correction to the transcript of yesterday.

14             MS. GUSTAFSON:  Yes, Your Honour.

15             Yesterday, I was informed by Mr. Misetic that I referred to a

16     document that formed part of 65 ter number 1571.  Incorrectly, I stated

17     that it was a report of a disciplinary measure to General Gotovina, and

18     Mr. Misetic was correct.  It's, in fact, a report to the legal department

19     of the Split Military District, and that was at transcript page 10856,

20     line 4.

21             JUDGE ORIE:  It is about tab 12, isn't it.

22             MS. GUSTAFSON:  Yeah.

23             JUDGE ORIE:  Thank you for this correction.

24             Are you ready to continue your examination?

25             MS. GUSTAFSON:  I am, Your Honour.

Page 10860

 1             JUDGE ORIE:  Then, Ms. Botteri, I'd like to remind you that you

 2     are still bound by the solemn declaration you gave yesterday at the

 3     beginning of your testimony.

 4             Ms. Gustafson, you may proceed.

 5             MS. GUSTAFSON:  Thank you, Your Honour, and just before

 6     commencing, I'd like to inform the Court that I may need more time that

 7     was originally planned for this witness.  It was originally scheduled for

 8     two and a half hours, and if could I have to the end of the second

 9     session this morning, I would endeavour to finish sooner, of course, but

10     I may need to the end of the second session.

11             JUDGE ORIE:  We'll see how the testimony develops.

12             MS. GUSTAFSON:  One or matter before I begin, Your Honour.

13     Yesterday, I neglected to tender the documents that I referred to, which

14     was the Code of Military Discipline, 65 ter number 1834; and the

15     disciplinary reports that I referred to, the two cases of burning, 65 ter

16     number 6012 and the five cases involving theft, and these are 65 ter

17     numbers 6013, 157, and 6031, if I could have exhibit numbers for those,

18     please.

19             JUDGE ORIE:  Mr. Registrar, first for the Code, 1834.

20             THE REGISTRAR:  Your Honour, 65 ter 1834 becomes Exhibit number

21     P1007; 65 ter 6012 becomes Exhibit number P1008; 65 ter number 6013

22     becomes Exhibit number P1009; 65 ter 1571 becomes Exhibit number P1010;

23     65 ter number 6031 becomes Exhibit number P1011.

24             JUDGE ORIE:  I hear of no objections; therefore, P1007 up to and

25     including P1011 are admitted into evidence.

Page 10861

 1             Please proceed.

 2             MS. GUSTAFSON:  Thank you, Your Honour.

 3             If I could have 65 ter 6018, this is the second shorter chart

 4     that I distributed yesterday, titled "Disciplinary actions taken by Ante

 5     Gotovina, in August and September 1995."  If the witness could be given a

 6     hard copy of the documents referred to in this chart.

 7                           WITNESS:  LJILJANA BOTTERI [Resumed]

 8                           [Witness answered through interpreter]

 9                           Examination by Ms. Gustafson: [Continued]

10        Q.   Ms. Botteri, this is a bundle of documents that's the same as the

11     ones you were given a few days ago, with the addition of an Index at the

12     front, dealing with disciplinary actions taken by General Gotovina in

13     August and September, 1995.

14             Do you recall being given the same bundle of documents a few days

15     ago?

16        A.   Yes.

17        Q.   And were these -- are these documents, documents would you have

18     seen at the time in August or September 1995?

19        A.   Yes.

20        Q.   And is this group of documents, the actions that they reflect,

21     are those actions consistent with your recollection of the disciplinary

22     actions taken by General Gotovina at that time, in August and

23     September of 1995?

24        A.   Yes.  However, I am not certain of the number of real instance

25     and what I'm seeing or being shown here.

Page 10862

 1        Q.   Thank you.

 2             MS. GUSTAFSON:  If I could have an exhibit number for the chart,

 3     please, Your Honour.

 4             JUDGE ORIE:  Mr. Registrar.

 5             THE REGISTRAR:  Your Honours, this becomes Exhibit number P1012.

 6             JUDGE ORIE:  Since I hear of no objections, P1012 is admitted

 7     into evidence.

 8             Please proceed.

 9             MS. GUSTAFSON:  Thank you, Your Honour.

10        Q.   I'm going only to direct you, this morning, to one group of

11     documents in the chart, and those are the documents behind tab number 9

12     and that's entry number nine in the chart.

13             MS. GUSTAFSON:  These documents are in 65 ter 5991.

14             JUDGE ORIE:  Mr. Misetic.

15             MR. MISETIC:  Your Honour, purely as a technical matter, I don't

16     think leave had been granted for the exhibit that was just admitted into

17     evidence to be added to the 65 ter list, so I don't know if procedurally

18     you wish to fulfil that formality as well.

19             JUDGE ORIE:  Ms. Gustafson, was that included in tendering that

20     you also sought leave to have if added to the 65 ter list?

21             MS. GUSTAFSON:  Yes, Your Honour.  I neglected to --

22             JUDGE ORIE:  Could I understand the absence of any objections to

23     include adding the document to the 65 ter list?

24             MR. MISETIC:  Correct, Your Honour.

25             JUDGE ORIE:  Then the decision stands as it was and is completed

Page 10863

 1     with a formal leave being granted for it to be admitted to the 65 ter

 2     list before it was admitted.

 3             Please proceed.

 4             MS. GUSTAFSON:  Thank you, Your Honour.

 5        Q.   Ms. Botteri, if you could look at the first page in this bundle,

 6     which should be the same document that's on the screen in front of you,

 7     you'll see that this is an order dated 29 August 1995 by General

 8     Gotovina, ordering the formation of a commission, and that included the

 9     department commander of the 4th Guards Brigade, as well as the Deputy

10     Commander of the 72 Military Police Battalion, and included three members

11     of your command:  Yourself; Major Milas, assistant commander for security

12     an information service; and Colonel Zelic, who you have said in your

13     statement was the assistant commander for political activity and

14     information.

15             And according to this order, the commission was tasked with

16     identifying the name and the unit of each perpetrator of a number of HV

17     soldiers who had taken -- illegally taken over some flats in Split; and

18     the commission was also ordered to, in collaboration with the 72 Military

19     Police Battalion, file criminal reports with the military prosecutor

20     against the perpetrators and their superiors, and to report to General

21     Gotovina on the matter within seven days with a copy of the military

22     disciplinary records and criminal reports.

23             MS. GUSTAFSON:  And if we could go to the next document, which

24     should be page 4 in B/C/S and page 3 in English.

25        Q.   This is a document dated 8th September 1995, and it's a report

Page 10864

 1     from General Gotovina to General Cervenko of the Main Staff.  You can see

 2     that under point 2, General Gotovina reports that the owner of each flat

 3     and the name of each -- of the perpetrator for each flat has been

 4     identified.

 5             Under point 4, he describes the current situation, how many

 6     perpetrators have moved out, how many have promised to move out, and how

 7     many have refused to move out.

 8             At point 5, he describes -- describes what took place.

 9             At point 6, discusses the responsibility of superior officers.

10             Under point 7, he stats that the commander of the 4th Guards

11     Brigade would implement disciplinary measures, and the 72 Military Police

12     Battalion will file criminal reports against perpetrators who do not move

13     out.

14             At this stage, I'd just like to ask you:  It appears from this

15     report from General Gotovina that the commission was successful in

16     establishing the facts and identifying the perpetrators in relation to

17     this incident.  Would you agree with that, as a member of this

18     commission?  Is that what happened?

19        A.   Yes.

20        Q.   Now, on this point, in your -- the statement you gave to the

21     Defence at paragraph 5, you noted that it was not a regular practice to

22     initiate disciplinary inquiries against unknown offenders.  And in this

23     case, as you have seen, the commission was tasked with identifying the

24     perpetrators of -- in this incident.

25             My question is:  Do you know why in this particular case a

Page 10865

 1     disciplinary inquiry was initiated in the case of unknown perpetrators

 2     when, as you've said, it was not common practice within the Croatian

 3     army?

 4             MR. MISETIC:  Your Honour, I believe since her Defence statement

 5     is in evidence and the question is "Why," I believe her attention then

 6     should be drawn to what is already in evidence; and to that extent, the

 7     objection formally, then, should be asked and answered.  But she lays

 8     that out in her answer to question 18 which begins on page 8 of the

 9     Defence statement.

10             MS. GUSTAFSON:  Your Honour, I think the question was a more

11     specific one which was, in light of the general proposition that she made

12     in her Defence statement, why it was that an exception to the general

13     practice was made, and that matter is not discussed.

14             MR. MISETIC:  Then the objection, Your Honour, is that it calls

15     for speculation because the answer to the question is that this was

16     formed because a superior officer to General Gotovina ordered that such a

17     commission be formed.  So, that it extent, it calls for knowing why --

18             JUDGE ORIE:  Even if we know who ordered it and whether it was

19     ordered, sometimes people have knowledge of why such an order was issued.

20             So the witness may answer the question.

21             Perhaps you repeat it, Ms. Gustafson.

22             MS. GUSTAFSON:  Thank you, Your Honour.

23        Q.   Ms. Botteri, the question was:  Why was an exception to the

24     general rule that disciplinary inquiries were not formed to investigate

25     matters of unknown perpetrators in this particular case?

Page 10866

 1        A.   I stand by what I said before, that disciplinary action was not

 2     taken against unknown perpetrators.

 3             In this particular case, the -- the first phase of this inquiry

 4     is not of military disciplinary character.  The commission that was

 5     formed is a war-time commission that was entrusted the investigation of

 6     this incident, in order to obtain or discover the names of perpetrators.

 7             We had some information at our disposal because if you take a

 8     look at this entire case file, you will see that we had some indicia

 9     which could point to the names of the perpetrators; in other words, only

10     after this commission actually learned the names of the perpetrators and

11     their action did we actually initiate the disciplinary procedure.

12             So these are two completely different matters.  The commission

13     that was appointed discovered the perpetrators, so once that was done,

14     there was no longer -- it was no longer possible to speak of unknown

15     perpetrators.  At the point when a criminal complaint is filed, the

16     perpetrators are familiar because this commission actually did its job as

17     it should have.

18        Q.   Ms. Botteri, I don't think anyone's disputing that an individual

19     disciplinary measure can't be taken against an unknown perpetrator for

20     the very fact that the perpetrator is unknown, but your statement dealt

21     with disciplinary inquiries, and you've said that the first phase of this

22     inquiry was not of a military a military disciplinary character.  But in

23     paragraph 1 of the order, General Gotovina tasks the commission to

24     establish the facts and propose measures to evict members of the HV who

25     forcibly moved in, and to propose measures to discipline the

Page 10867

 1     perpetrators.

 2             Are you disputing that this was an order to undertake, at least

 3     in part, a disciplinary inquiry?

 4        A.   No, this is not an inquiry.

 5        Q.   What would you call it then?

 6        A.   The conduct of an investigation for which we had certain indicia

 7     which could have help discover the perpetrators, precisely because in

 8     each particular case, we sought to actually carry out whatever we were

 9     supposed to, under the laws and regulation.

10        Q.   Thank you.

11        A.   I can ascertain here that this -- these were two different

12     matters here.  I still stand by what I said earlier, that inquiries were

13     not undertaken against unknown perpetrators; and in this particular case,

14     that was not the case.

15        Q.   Thank you.  I'll move on.

16             Just before I do, I'd like it confirm the class number at the top

17     of page 1, the page you have before you, 114-03/95-01/02.  That class

18     number refers to disciplinary matters.  Is that right?

19        A.   I don't quite understand your question.  Which numbers are you

20     referring to?

21        Q.   I'm referring to class number at the top of the first page.  I

22     believe it's the page you have in front of you.

23             MS. GUSTAFSON:  And if we could go to page 1 in e-court, it

24     should be there as well.

25        Q.   Do you see the class number 114-03 --

Page 10868

 1        A.   The class reference number, right.

 2        Q.   That class number refers to disciplinary category?

 3             JUDGE ORIE:  Ms. Botteri, could I seek a clarification of your

 4     answer.

 5             This order states that the commission is charged with tasks,

 6     among them, the task to propose disciplinary measures for the

 7     perpetrators responsible.

 8             Doesn't this qualify the order as at least, in part, dealing with

 9     an investigation, among other matters, for the purposes of collecting

10     facts or establishing facts for the purpose of taking disciplinary

11     measures?

12             THE WITNESS: [Interpretation] Yes, well, that's what I said, that

13     this commission dealt with conducting inquiries in order to establish

14     certain facts, identify perpetrators, so that that could serve as a basis

15     for instituting liability proceedings, either in disciplinary court or in

16     a criminal court.

17             JUDGE ORIE:  Please proceed.

18             MS. GUSTAFSON:  Thank you, Your Honour.

19             If we could move to page 7 in the English and page 8 in

20     the B/C/S.

21        Q.   Ms. Botteri, this should be the third document in the bundle.

22     It's dated the 8th of September, 1995, as well, and it's an order from

23     General Gotovina to the command of the 4th Guards Brigade and the

24     commander of the 72nd Military Police Battalion.  He -- in this order, he

25     orders the 4th Guards Brigade commanding officer and the 72nd Military

Page 10869

 1     Police Battalion commanding officer to take steps -- sorry, the 4th

 2     Guards Brigade commanding officer to impose disciplinary measures and the

 3     72nd Military Police Battalion commanding officer to file criminal

 4     charges against the perpetrators who do not move out of the flats

 5     immediately after returning from the field.

 6             You've discussed this order in your Defence statement at

 7     paragraph 18, and you said:  "Based on the order by General Cervenko, the

 8     Split Military District commander ordered the military police here two

 9     things:  Participation in solving the situation regarding the illegal

10     entry and securing the work of the commission.  The Split Military

11     commander was authorised to order both, pursuant to Article 9 of the

12     rules governing the structure an operation of the military police because

13     it was part of their daily police work.

14             "It is a matter of police activity where the commander is, in

15     fact, providing the police with information that they should act in a

16     manner already prescribed by the rules on their operation.  Besides, what

17     is also important is that in this case, General Gotovina acted entirely

18     according to the rules and guidelines given to him by the chief of the

19     Main Staff."

20             I'd just like to clarify this part of your answer in your Defence

21     statement here, because you referred to Article 9 of the military police

22     rules.

23             MS. GUSTAFSON:  And, Your Honours, this is in evidence as P880.

24        Q.   That rule in the relevant states:  "While performing their

25     regular military police tasks, military police units are subordinate to

Page 10870

 1     the commander of the Military District in the military police units'

 2     areas of operations."

 3             As you can see, and as I'm sure you know, Article 9 refers to the

 4     subordination of the military police to the Military District commander

 5     for certain tasks and does not mention the Main Staff.

 6             So, when you said that General Cervenko's guidelines to Gotovina

 7     in relation to this incident were also important, my question is:  From a

 8     strictly legal perspective, did General Cervenko's guidelines have

 9     anything to do with General Gotovina's legal authority to give these

10     orders to the military police in relation to this incident?

11        A.   I would be grateful if you would clarify the question.  Legal

12     authority in what sense?

13        Q.   Well, you said in your statement that General Gotovina was

14     authorised to issue this order to the military police because it was part

15     of their daily police work, and you referred to Article 9 of the rules

16     for the military police.

17             My question to you is:  Did General Gotovina have this authority

18     pursuant to Article 9 to issue the orders that you see in this documents

19     irrespective of the fact that he was following General Cervenko's

20     guidelines?

21        A.   In keeping with the provisions of Article 9 of the rules on the

22     operation of military police, General Gotovina had powers only within the

23     framework of the provisions of Article 9, but I said in my statement that

24     the fact should not be neglected that General Gotovina also received a

25     similar order from his own direct superior.  It's not that he was acting

Page 10871

 1     unlawfully just because he received the order from his direct superior.

 2        Q.   So, if I understand you correctly, General Gotovina's authority

 3     to take these measures stemmed from Article 9.  Is that correct?

 4        A.   Yes.

 5        Q.   Thank you.  And do you know personally how this matter was

 6     resolved, whether any measures were taken against these perpetrators or

 7     whether they agreed to move out of the apartments; or do you know,

 8     generally speaking, what happened?

 9        A.   I cannot recall the details, but from what I see in the documents

10     and knowing how things were done at that time, I'm sure that everything

11     was done as described in the file itself.  That means that some of them

12     who had moved in illegally moved out, and all the measures that were

13     envisaged were, indeed, taken:  Disciplinary proceedings but also

14     criminal proceedings, as indicated in the file.

15             So it is not based on my recollection.  It's based on my general

16     knowledge and observations, because I lived there at the time, and I`m

17     sure that this was, indeed, implemented as stated in the document.

18        Q.   Thank you.  And one last question on these documents.

19             In your Defence statement, you said that you believed that these

20     housing cooperatives had turned to the chief of the Main Staff with the

21     hope that the issue would be resolved more efficiently given that the

22     court procedure in these cases was very slowly.

23             Based on your involvement with the commission and your review of

24     these documents, would you say that the problem was, indeed, resolved

25     efficiently through the mechanisms implemented by the chief of the

Page 10872

 1     Main Staff and by General Gotovina in this case?

 2        A.   I still don't understand your question.  I'm very sorry.

 3             THE INTERPRETER:  Interpreters would be grateful if extra

 4     microphones could be switched off.

 5             MS. GUSTAFSON:

 6        Q.   My question is:  Based on your involvement in the commission and

 7     your review of these documents, would you say that this was an efficient

 8     resolution to the problem of HV soldiers illegally occupying flats?

 9        A.   Yes, yes.  It was certainly more efficient than if things had

10     taken the regular court channels, because court proceedings are very

11     slow.

12             JUDGE ORIE:  May I seek one clarification of one of the previous

13     answers.

14             Ms. Botteri, you said, when asked about what was the follow-up,

15     what happened, you said:  "Some of them who had moved in illegally moved

16     out, and all the measures that were envisaged were, indeed, taken:

17     Disciplinary proceedings but also criminal proceedings, as indicated in

18     the file."

19             Then you say:  "So it is not based on my recollection.  It's

20     based on ..."  There the transcript is not perfectly clear.  You said you

21     lived there at the time.

22             Could you tell us where it appears in the documentation that

23     criminal prosecution was instituted and how, by living there, you could

24     know that people were prosecuted or disciplined.

25             THE WITNESS: [Interpretation] I know because both as a lawyer and

Page 10873

 1     a citizen, I was familiar with the legal system and how it operated.

 2             JUDGE ORIE:  Yes.  Now, let's make a clear distinction between

 3     how a system is supposed to operate and how it, in fact, operates.

 4             So what I'd like to know, if you say, I can tell you that these

 5     people were prosecuted or disciplined, I'm not interested in knowing how

 6     the system provided for the possibility and perhaps even the duty to

 7     discipline or to prosecute people, but I'm interested in what actually

 8     happened and how you would know that these persons were actually

 9     prosecuted.  You said it is not from your memory but it is because you

10     lived there and because you -- on the basis of the documentation.

11             THE WITNESS: [Interpretation] Criminal responsibility was

12     established in legal proceedings before regular courts.

13             JUDGE ORIE:  Yes.

14             THE WITNESS: [Interpretation] Therefore --

15             JUDGE ORIE:  I stop you there.  I do understand that criminal

16     responsibility is established in a court.  What I'd like it know, in what

17     court, against these people, criminal responsibility was established or

18     perhaps they were acquitted.  I don't want a description of the system.

19     I want a description of what happened in that system, in relation to

20     these persons, in relation to these acts.  And if you don't know, fine,

21     then tell us; if you do know, tell us what you know, and not about what

22     was supposed to happen in a system.

23             THE WITNESS: [Interpretation] If we're talking about military

24     disciplinary liability, all offenders were supposed to be disciplined by

25     their military superiors.  If we're talking about criminal

Page 10874

 1     responsibility, then it was the military police that filed criminal

 2     reports --

 3             JUDGE ORIE:  [Previous translation continues] ...

 4             THE WITNESS: [Interpretation] -- or should have filed criminal

 5     reports to the state prosecutor.

 6             Yes?

 7             JUDGE ORIE:  Ms. Botteri, I think you are intelligent enough to

 8     know that the distinction between what should happen and what happens, as

 9     a trained lawyer.  For example, I read, on page 7, that it was ordered

10     that the 72nd Military Police Battalion commanding officer shall file

11     criminal charges through his specialist staff to the military

12     prosecutor's office in Split.

13             What I want to know is whether what was ordered, whether you have

14     any knowledge on whether that was done, yes or no.  It seems a rather

15     simple question.  I know who should have done it, but what I would like

16     to know is whether it was done, yes or no, if you know.  If you don't

17     know, tell us; if do you know, fine.

18             THE WITNESS: [Interpretation] I cannot have knowledge about this,

19     whether it was really down, because --

20             JUDGE ORIE:  [Previous translation continues] ...

21             THE WITNESS: [Interpretation] -- I had no control over the

22     functioning of the legal system.

23             JUDGE ORIE:  I can tell you that I sometime have knowledge of

24     matters which are not within my control.  So for the answer "I can't have

25     any knowledge," what I am interested in is to know whether you have

Page 10875

 1     knowledge.  Whether you could have had knowledge is a different question,

 2     whether you were in control is a different question.  It's just do you

 3     know or do you not know.

 4             I take from your answer that you just don't know whether it

 5     happened or not, that you expect it to have happened, because of the

 6     system, but that have you no actual knowledge of it.

 7             Is that correctly understood?

 8             THE WITNESS: [Interpretation] Yes.

 9             JUDGE ORIE:  Thank you.

10             Please proceed, Ms. Gustafson.

11             MS. GUSTAFSON:  Thank you, Your Honour.

12        Q.   Ms. Botteri, do you recall any other similar commissions or

13     inquiries set up in August or September of 1995 to investigate any other

14     incidents of alleged misconduct by HV members?

15        A.   I really cannot remember specific cases.  It was a really long

16     time ago.

17        Q.   But you remember this case.  Is that right?

18        A.   When I see a specific case file, it refreshes my memory; but,

19     generally speaking, I cannot remember cases individual cases, which means

20     that if I saw perhaps some more case files, I would recall them

21     eventually.  But just like this, when you ask me, I don't.  I don't

22     remember.

23        Q.   Thank you.

24             MS. GUSTAFSON:  Your Honour.

25             JUDGE ORIE:  Can I seek further clarification of this answer.

Page 10876

 1             Ms. Botteri, you say:  "I cannot remember individual cases."  Can

 2     you positively confirm that there were other cases where such a

 3     commission was established, so even if you don't remember what it was all

 4     about, but that you know that there have been orders establishing.

 5             THE WITNESS: [Interpretation] Yes.

 6             JUDGE ORIE:  Can you give us an indication about the number of

 7     times such a commission was established.  Was it one other commission,

 8     five other commissions, 20?  Could you give us an indication?  I'm not

 9     asking for a precise number.

10             THE WITNESS: [Interpretation] I really cannot remember the

11     number.

12             JUDGE ORIE:  No.  I'm asking an indication of the number.  Could

13     that have been one other commission, or quite a number, 10, 20?  You have

14     no recollection as approximately how often you saw a situation where such

15     a commission was established?

16             THE WITNESS: [Interpretation] My estimate is that there was a

17     large number of such commissions, and the reason I cannot give you even a

18     rough number, like 50, 100, or 1.000, is that I was not in a position to

19     learn about it every time such a commission was formed and because I

20     didn't always have access to such information.  Maybe there had been many

21     commissions at lower levels, not only at the level of the command where I

22     worked.  Nevertheless, within the whole system, these other commissions

23     dealt with enforcing military discipline in the whole Military District.

24             JUDGE ORIE:  Now you said that your estimate was that it was a

25     large number.  Could you give us an estimate on the level of which you

Page 10877

 1     had knowledge, because, at the same time, you say large number, but I

 2     might have not known about them.

 3             Now, on what is your estimate based on other than commissions you

 4     may not have been informed about, because that comes down to speculation,

 5     rather than to an estimate.  You were referring to the lower levels.

 6             Now, at the level of the command you worked in - you made that

 7     distinction - could you give us an indication on how many commissions

 8     were established on that level, where, apparently, you had knowledge?

 9             THE WITNESS: [Interpretation] Not with any certainty.

10             JUDGE ORIE:  Can you positively confirm that at that command

11     level there were more commissions established than the one we just talked

12     about?

13             THE WITNESS: [Interpretation] Yes.

14             JUDGE ORIE:  Could you give us an approximate indication of how

15     many of the commissions were established at that level, 1, 5, 20,

16     whatever it is?  Of course, I should add perhaps 1, approximately 5,

17     approximately 10, 100.  Could you tell us.

18             THE WITNESS: [Interpretation] It's difficult for me to recall

19     specific numbers.  I would appreciate it if you could clarify whether you

20     are really asking me about military disciplinary commissions or perhaps

21     commissions that had other tasks from other sectors.

22             JUDGE ORIE:  When I'm talking about similar commissions, I'm

23     talking about a commission like this one, who was tasked with an inquiry,

24     perhaps among other matters, but also for the purpose of establishing

25     facts to see whether any disciplinary measures should be taken or whether

Page 10878

 1     any criminal prosecutions should be undertaken.

 2             THE WITNESS: [Interpretation] Yes, that makes it easier to

 3     answer, perhaps, because my knowledge, or rather, conclusions about the

 4     number of such commissions comes -- come from the fact that there was a

 5     large number of military disciplinary proceedings at the time.  So, as

 6     far as I can judge, there could have been even 500 or a thousand, not

 7     commissions but proceedings, cases.  But sometimes these cases may have

 8     been handled by individuals, not only commissions.

 9             JUDGE ORIE:  I'm asking about commissions, that's clear, isn't

10     it?  I'm talking about the establishment of such commissions.  What your

11     are doing is making is a big circle and my question and then finally say,

12     well, there were a lot of disciplinary proceedings so there could have

13     been.

14             Do you have any knowledge?  I want to know not whether you can

15     draw any conclusions, but whether have you any knowledge of similar

16     commissions being established at your command level.  If you don't have

17     knowledge, tell us; if you have, tell us what you know about approximate

18     numbers, because that's what I asked for.

19             THE WITNESS: [Interpretation] I cannot give you a precise answer,

20     no.

21             JUDGE ORIE:  You can't give me a precise answer on an approximate

22     number of such commissions being established at your command level.  Is

23     that correctly understood?  I'm not asking for a precise number; I'm

24     asking for an approximate number.

25             If you don't know, please tell us, but you tell us you can't give

Page 10879

 1     us a precise answer, which suggests that you could give us an unprecise

 2     answer.  If that is the case, tell what you say your unprecise answer is;

 3     if not, tell us that you can't answer the question.

 4             THE WITNESS: [Interpretation] I cannot answer your question.  I

 5     don't know.

 6             JUDGE ORIE:  Thank you.

 7             Please proceed, Ms. Gustafson.

 8             MS. GUSTAFSON:  Thank you, Your Honour.  If I could tender those

 9     documents into evidence.

10             MR. MISETIC:  There a lot of documents I don't have any

11     objection, but I think we have gone through quite a few.

12             MS. GUSTAFSON:  Three.

13             JUDGE ORIE:  There are three documents --

14             MS. GUSTAFSON:  Forming a case file.

15             JUDGE ORIE:  What I see is that, on e-court, I have nine pages in

16     total, consisting of three documents; is that correct?  I think my last

17     quote was from the semi-last document.  They're uploaded under what 65

18     ter number, Ms. Gustafson?

19             MS. GUSTAFSON:  Yes, Your Honour, 5991.

20             JUDGE ORIE:  So it's the case file.

21             Mr. Registrar.

22             THE REGISTRAR:  Your Honours, this becomes Exhibit number Exhibit

23     number P1013.

24             JUDGE ORIE:  P1013 is admitted into evidence.

25             Please proceed.

Page 10880

 1             MS. GUSTAFSON:  Thank you, Your Honour.

 2        Q.   Now, Ms. Botteri, a few moments ago, we were talking about the

 3     military police and the role of the military police in the Split Military

 4     District structure.  You've given some information about that in your

 5     various statements.  In the first statement, 2004, you said:  "For their

 6     regular daily police work, the military police would be under the command

 7     of General Gotovina whilst they were working in the Military District

 8     Split."

 9             In your second statement, you said:  "In operational terms, the

10     72nd Military Police Battalion was subordinated to the Split Military

11     District, and I think that the commander of the Split Military District

12     was authorised to issue orders from within their scope of activity, in

13     accordance with the standard operating procedures of military police."

14             And in your statement to the Defence of a few days ago, you said:

15     "In practice, the Split Military District commander could have issued

16     orders for the so-called daily police work.  This entails work planned in

17     securing and escorting a vehicle column, et cetera; however, with basic

18     military police tasks, such as preventing criminal offences and detecting

19     perpetrators of the same, an order issued by the Split Military District

20     commander in these case would say not be relevant.

21             "The prevention of committing criminal offences and protecting

22     perpetrators, criminal processing of objects, conducting criminal

23     investigative actions had to be done by the military police in accordance

24     with their legal responsibility and in accordance with a warrant by the

25     military prosecutor, i.e., the investigating judge."

Page 10881

 1             Now, I just want it clarify those various answers.

 2             At the stage before there's any form investigation, before

 3     there's the involvement of the prosecutor or an investigating judge, I'm

 4     talking here about basic military police tasks, like patrolling, setting

 5     up check-points, stopping members of the army who are caught committing

 6     crime, reporting those crimes, filing criminal reports in relation to

 7     such perpetrators, those kind of basic tasks.  Those tasks didn't require

 8     a warrant by the military prosecutor or an investigating judge.  Is that

 9     right?

10             MR. MISETIC:  I object to the form of the question, Your Honour.

11     The characterisation of certain aspects as basic tasks may be something

12     this disputed by the parties, so it is leading.

13             JUDGE ORIE:  Let's then refrain from the basic tasks but those

14     tasks that you described, Ms. Gustafson, is that what you'd like the

15     witness to focus her answer on?

16             MS. GUSTAFSON:  Yes, Your Honour, those tasks.

17             JUDGE ORIE:  So whether those tasks ...

18             THE WITNESS: [Interpretation] The first statement that I gave to

19     the Prosecutor, yes?

20        Q.   My question was:  Is a warrant from an investigating judge or a

21     prosecutor required in order for the military police to conduct those

22     tasks.

23        A.   No, not in every case.

24             JUDGE ORIE:  Ms. Botteri, could you mention for us any case in

25     which you would need the warrant from an investigating judge or a

Page 10882

 1     prosecutor when you are patrolling, setting up check-points or stopping

 2     members of the army who are caught committing a crime, and then reporting

 3     those crimes and filing criminal reports in relations to them.

 4             Could you give us an example of where you would, to perform those

 5     tasks, where you would need a warrant by a prosecutor or an investigating

 6     judge.

 7             THE WITNESS: [Interpretation] I did not participate in this work.

 8     This had to do with the cooperation between the court and the police.

 9     So, the police, in keeping with their rules of service of the military

10     police, carried out their duties.  They submitted reports, criminal

11     reports, to the state prosecutor, and that is how the police and the

12     state prosecutor worked together.

13             JUDGE ORIE:  Yes.  Your answer was, to the question of

14     Ms. Gustafson, when she asked you whether a warrant of an investigating

15     judge or a prosecutor was required to conduct those tasks, you said:

16     "No, not in every case," which suggests that you had cases on your mind,

17     whether such a warrant would be needed.  I'm asking you whether you could

18     give us an example of that.

19             THE WITNESS:  I couldn't give you an example because I did not

20     take part in this portion of the work.  I did not work for the court or

21     the military police.  But the cooperation between the military police and

22     the state prosecutor was twofold.  The military police, in the course of

23     their duties, if they learned of a criminal offence and submitted a

24     criminal report to the state prosecutor, the state prosecutor could then

25     take some actions in order to resolve -- to solve the case, or ask the

Page 10883

 1     police to supplement the case with some additional investigative actions.

 2             My answer, as I gave it, was in this context; however, I did not

 3     work either for a court or the military police.

 4             JUDGE ORIE:  So what you're saying --

 5             THE WITNESS: [Interpretation] This was irrelevant for my job.

 6             JUDGE ORIE:  Yes.  I understand your answer to be the following:

 7     These tasks were performed without such a warrant, but once it had been

 8     reported that there was a possibility that for follow-up investigations,

 9     that a prosecutor, for example, would give further instructions.

10             Is that understood well?

11             THE WITNESS: [Interpretation] I would not call it "instructions,"

12     but, rather, a request for additional actions, investigative actions.

13             JUDGE ORIE:  I'm asking you because you're making the distinction

14     between some cases where there were such warrants and others.  You say

15     not in all cases.  So I'm trying to understand what you fully meant, but

16     it is clear to me now.

17             Please proceed, Ms. Gustafson.

18             MS. GUSTAFSON:  Thank you, Your Honour.

19        Q.   Now, in relation to these tasks where there was no involvement

20     from the prosecutor or the investigating judge, for these tasks, would an

21     order from General Gotovina be relevant to these tasks?  For example, an

22     order from General Gotovina to the military police to set up a

23     check-point in a certain location, would that be a relevant order?

24             MR. MISETIC:  Your Honour, I apologise for the interruption, but

25     a -- relevant to what?

Page 10884

 1             MS. GUSTAFSON:  The statement --

 2             JUDGE ORIE:  The witness herself used the word relevant,

 3     Mr. Misetic.  So, if you say this is irrelevant if he gave such an order,

 4     specifically in relation to the authority of others, if you look at it in

 5     the context of the answer of the witness, I think that the question is --

 6             MR. MISETIC:  I'm sorry.  Okay.  Well, I just don't understand

 7     what a check-point has to do with an investigating judge.  I mean --

 8             JUDGE ORIE:  No.  That's exactly what Ms. Gustafson is asking

 9     about.  You understand her perfectly well, and it's a follow-up to one of

10     the answers given by the witness.

11             MR. MISETIC:  Can we cite that, then, please?

12             JUDGE ORIE:  Yes, we have to find it.  But just from my memory,

13     she said that such an order would not be relevant.

14             MS. GUSTAFSON:  It's from the Defence statement, Your Honour, the

15     answer to question 16 in the Defence witness statement.

16             JUDGE ORIE:  Would that be --

17             MS. GUSTAFSON:  It says:  "Basic military police tasks such as

18     preventing criminal offences and detecting perpetrators, an order issued

19     by the Split Military District commander in these case would say not be

20     relevant."

21             MR. MISETIC:  Correct.  So what is check-point?  That's my

22     point --

23             MS. GUSTAFSON:  Then it goes on to talk about actions requiring a

24     warrant.  I think the question is perfectly --

25             MR. MISETIC:  Your Honour, she's talking about, on the one hand,

Page 10885

 1     in the statement check-points --

 2             JUDGE ORIE:  Mr. Misetic, I don't want to discuss the content at

 3     this moment of this in the presence of the witness.  That is not

 4     appropriate.

 5             MR. MISETIC:  That's fine with me.  I just don't want to confuse

 6     the witness by misrepresenting what is in the statement, and I'm afraid

 7     we'll go down that road if we don't actually put to her what she actually

 8     said.

 9             MS. GUSTAFSON:  I put to her what she actually said, Your Honour.

10     I read it out.

11             JUDGE ORIE:  Yes.  In page 23, Ms. Gustafson read out exactly

12     what the witness said in her statement.

13             Ms. Gustafson, you may proceed.

14             MS. GUSTAFSON:  Thank you, Your Honour.

15        Q.   Ms. Botteri, do you have my question --

16        A.   Just a moment.  Am I allowed to look at my statements to read

17     what I stated there?

18             MS. GUSTAFSON:  Does the witnesses have the statements that she

19     was given yesterday?

20             JUDGE ORIE:  Yes, could the hard copies be given to Ms. Botteri.

21             THE WITNESS: [Interpretation] I have them with me.  If you allow

22     me, I can take them out of my purse.

23             MS. GUSTAFSON:

24        Q.   The answer is - I'm not sure what page in the B/C/S -- about

25     halfway down, the answer to question 16 of your most recent statement

Page 10886

 1     that you gave to the Defence.

 2        A.   Which statement?

 3        Q.   The one you gave to the Defence a few days ago.

 4        A.   Page 16?

 5        Q.   Sorry.  Paragraph 16.

 6        A.   Oh, I see, paragraph 16.  There -- there is no page 16.

 7        Q.   And the part I read out to you is about halfway down that answer.

 8        A.   Paragraph?

 9        Q.   There's a --

10             JUDGE ORIE:  Question 16.

11             MS. GUSTAFSON:

12        Q.   There's a question numbered 16.

13             MS. GUSTAFSON:  Perhaps the usher to assist the witness.

14        Q.   There's a question 16 and then there's an answer in the following

15     paragraph.  It should be a statement dated 2008.

16        A.   Yes, I have it.

17             In the statement dated so and so, is that what you are referring

18     to?

19        Q.   Yes.  It's the answer to that question, beginning approximately

20     halfway down, where it says:  "In practice, the Split Military District

21     commander could have issued orders," and following.

22        A.   Yes.  All right.  I've read this portion.

23             Could you now please put your question?

24        Q.   The question was:  For a military police task, such as setting up

25     a check-point, would a -- would an order from General Gotovina be a

Page 10887

 1     relevant order?  For example, an order from General Gotovina to the

 2     military police to set up a check-point in a particular location, would

 3     that be a relevant order?

 4        A.   In my view, no.  I think this was within the competence of their

 5     basic tasks, but this is only my opinion.

 6        Q.   Are you saying that you think setting up a check-point was within

 7     the competence of the basic tasks of the military police?

 8        A.   Yes.

 9        Q.   I mean, you stated earlier that General Gotovina's authority

10     to -- over the military police was authority over their regular military

11     police tasks, according to Article 9 of the rules.  Would setting up a

12     check-point be part of the regular military police tasks, pursuant to

13     Article 9 of the rules?

14        A.   This was not my area of expertise.  I was not sufficiently

15     acquainted with the work and rules of the military police.  I just had

16     general knowledge, and probably my statements says they are the result of

17     that situation.

18        Q.   So, I mean, is it fair that you had no knowledge of the practical

19     situation, in terms of whether General Gotovina issued orders to the

20     military police to take steps, such as setting up check-point,

21     patrolling, or detaining members of the HV who were found to be

22     committing crimes?  Is that correct you had no practical knowledge of the

23     situation?

24        A.   I gave my statements only in respect of the work that I did.  So

25     when I discussed the authority of the military police, what I was saying

Page 10888

 1     referred to those areas that had to do with military disciplinary

 2     liability, criminal responsibility, within the scope of my work, in the

 3     sense that it related to my work.  But as for this portion, when I gave

 4     my statements, it did not refer to this type of activity.

 5        Q.   So outside the scope of your particular role over disciplinary

 6     matters, would it be correct to say that you don't know what orders

 7     General Gotovina could issue over the military police?

 8        A.   The commander could issue, to the military police, I will

 9     reiterate, the commander, in keeping with the provisions of the rules on

10     the conduct of the military police, on the work of the military police.

11        Q.   And earlier, in answer to one of my earlier questions about the

12     HV members occupying flats illegally and General Gotovina's order to the

13     military police to file criminal charges against the perpetrators who

14     didn't move out, you agreed with me that his authority to do that stemmed

15     from Article 9.  Do you remember that?

16        A.   Yes.

17        Q.   And just in relation to this, to your practical knowledge, in

18     your 2007 statement, at paragraph 24, you said that you only took part in

19     meetings of the Split Military District command and you presumed that

20     General Gotovina held their meetings, and you thought that the 72nd

21     Military Police commander would have attended such meetings.  I don't

22     think - I mean, unless you need to - I don't think -- my question isn't

23     based on what you said in your statement.

24             My question is:  Did you attend any meetings between General

25     Gotovina and Colonel Budimir?

Page 10889

 1             MR. MISETIC:  Your Honour, since the first part of the question

 2     refers to paragraph 24 --

 3             MS. GUSTAFSON:  She's reading the statement.

 4        Q.   My question was:  Did you attend any meetings between General

 5     Gotovina and Colonel Budimir?

 6        A.   I don't remember that I did.

 7        Q.   And do you recall being -- ever being present when General

 8     Gotovina gave Colonel Budimir any orders?

 9        A.   No, I don't.

10        Q.   Thank you.

11             I'd like to move to another topic.

12             MS. GUSTAFSON:  Your Honour, I'm moving to another topic.

13     Perhaps it would be a good time to have a break.

14             JUDGE ORIE:  Yes.  We'll have a break and resume at five minutes

15     to 11.00.

16                           --- Recess taken at 10.28 a.m.

17                           --- On resuming at 11.02 a.m.

18             JUDGE ORIE:  Ms. Gustafson, you may proceed.

19             MS. GUSTAFSON:  Thank you, Your Honour.

20        Q.   Now, Ms. Botteri, I'd like to ask you a few questions about units

21     that were temporarily subordinated to the Split Military District and the

22     disciplinary procedures for such units, and you've discussed this matter

23     in your various statements.

24             In your Defence statement, you said:  "The Split Military

25     District could not have conducted disciplinary proceedings against

Page 10890

 1     members of the attached subordinate units; that is, it could have

 2     conducted them in extraordinary cases but the system was not set up to

 3     suit these cases.  In fact, the reporting system was set up in such a

 4     manner that this could not happen."

 5             My question is:  What was it about the reporting system that

 6     caused you to conclude that the Split Military District could not have

 7     conducted disciplinary proceedings against temporarily subordinated

 8     units, except in extraordinary cases?

 9        A.   It is true that I stated that, and I stated that based on the

10     provisions of the rules governing disciplinary matters.  This statement

11     that I made is completely true and based on the Code of Military

12     Discipline, and based on the enactment which stipulated precisely the

13     coverage of military districts and the fundamental principle derived from

14     all the provisions of the Code of Military Discipline; namely, that it

15     was not possible for any commander within the Military District of Split

16     to conduct disciplinary proceedings against any member of another

17     resubordinated unit or attached unit.

18        Q.   Which provision or provisions of the Code are you referring to

19     specifically?

20        A.   The Code of Military Discipline, regardless of the fact that it

21     governed offences that were, at first blush, minor, was rather complex,

22     in fact, and complicated, I would say, in a formally legal sense.  That

23     meant that if you had to take legal action against an offender for a

24     disciplinary offence or a disciplinary violation, you had to proceed,

25     first of all, from the status of the offender, from his position; that

Page 10891

 1     is, his rank.  You had to know whether he was an active duty military

 2     person --

 3        Q.   Ms. Botteri.

 4        A.   Yes?

 5        Q.   I asked you to indicate which provision or provisions of the Code

 6     prevented commanders from disciplining temporarily subordinated units.

 7     Can you point to any particular provisions of the Code; or is your answer

 8     that it's just based on the Code as a whole?

 9        A.   I am talking about the Code as a whole, and the powers were also

10     stipulated by the legal document that stipulated the existence of several

11     Military Districts.

12        Q.   And you would agree that in Article 19 of the Code, it states

13     that superior officers shall decide the disciplinary responsibility of

14     their subordinates?  Would you agree that one of the principles of

15     military discipline is to provide a system where superiors can discipline

16     their subordinates?

17        A.   Can I have a copy of the Code, please?

18        Q.   Yes.

19        A.   All right.  I have read Article 19.

20        Q.   And would you agree that one of the principles of a military

21     disciplinary system is to provide a mechanism for superiors to discipline

22     their subordinates?

23        A.   I agree, in principle, that there is a possibility for superior

24     commanders to establish the disciplinary responsibility of their

25     subordinates and pronounce disciplinary measures.  However, I maintain

Page 10892

 1     that, in view of the complexity of the Code of Military Discipline, in

 2     practice, generally speaking, it was impossible to implement.  Besides,

 3     Article 19 is general language.  It says "superior commanders, superior

 4     officers."

 5             However, the Code of Military Discipline is something we cannot

 6     view in isolation from other documents that stipulated the powers of a

 7     specific commander.  One of those legal documents was the division into

 8     several military districts.  Therefore, Article 19, when it speaks of a

 9     superior officer, it means a superior officer in a particular military

10     entity in which that superior officer is located.

11             The system was not adapted to allow for the possibility to

12     pronounce military disciplinary measures against a member of another

13     attached or temporarily subordinated unit.  In order to prosecute in the

14     disciplinary sense any offender, you had to be aware of his status,

15     whether he was an active military man, whether he had been mobilised as a

16     conscript, what his rank was; and as soon you were in a position to

17     request information about that, it was more practical not to go through

18     with it at all.  It was impossible to implement in practice.

19        Q.   Ms. Botteri, if General Gotovina wanted to discipline the

20     commander of the 7th Guards Brigade who was subordinated to him, what is

21     it about his awareness of his status, whether he was an active military

22     man, whether he had been mobilised as a conscript, how are those

23     obstacles to General Gotovina's ability to discipline the commander of

24     the 7th Guards Brigade?

25             MR. MISETIC:  Your Honour, I'm going to object because it was

Page 10893

 1     asked and answered in the last answer, but --

 2             JUDGE ORIE:  I would --

 3             MS. GUSTAFSON:  I disagree, Your Honour.

 4             JUDGE ORIE:  I would join Ms. Gustafson in disagreeing with that

 5     proposition.

 6             Could you please answer the question, Ms. Botteri.

 7             THE WITNESS: [Interpretation] Could you please repeat the

 8     question?

 9             MS. GUSTAFSON:

10        Q.   My question was:  How was General Gotovina's awareness of the

11     status, whether he was an active military man, whether he had been

12     mobilised as a conscript, how were those obstacles to General Gotovina's

13     ability to discipline the commander of the 7th Guards Brigade who was

14     subordinated to him?

15        A.   I'm sorry, but I can't agree with the term "subordinated to him."

16             What do you mean by saying "subordinated to him"?

17        Q.   I mean subordinated to him in the sense that General Gotovina was

18     the superior of the 7th Guards Brigade commander who was his subordinate.

19             MR. MISETIC:  Object to the formulation, Your Honour, and I'd ask

20     for foundation.

21             JUDGE ORIE:  Ms. Gustafson, you put it as a fact that --

22             MS. GUSTAFSON:  Your Honour, I think it is in the Defence

23     statement.  I'm just looking for it.

24        Q.   The last sentence of answer -- the answer to question 19:

25     "Another thing which draws attention is the fact that the report," she's

Page 10894

 1     talking about a statistical report of disciplinary measures, "didn't

 2     include units subordinated to the Split Military District which were not

 3     organic parts - e.g., the 7th Guards Brigade, 1st Croatian Guards Corps,

 4     or the 144th Guards Brigade, 2nd Battalion of the 9th Guards Brigade and

 5     the 81st Guards Battalion."

 6             JUDGE ORIE:  Yes, I think the foundation is there.  That's what

 7     the witness apparently said in the statement.

 8             MR. MISETIC:  Yes, Your Honour.  My foundational question,

 9     though, goes to exactly to this answer.  There is a little more subtlety

10     than was put to her in that question.

11             JUDGE ORIE:  Yes, but can you deal with that in cross-examination

12     if you want to.  It clearly states that it -- that the units mentioned

13     were subordinated.  That's what the text tells us.

14             Now, Ms. Botteri, you said:  "What do you mean by

15     'subordinated'?"  I think that Ms. Gustafson meant exactly the same as

16     what you said in your answer to question 19 in the statement you gave to

17     the Defence.

18             So, again, the question is to what extent would lack of knowledge

19     on these background information, like when mobilised, et cetera,

20     et cetera, whether that would be an obstacle for General Gotovina to

21     exercise disciplinary powers against the commander of the 7th Guards

22     Brigade, which, as you said, was subordinated to the military district --

23     Split Military District.

24             THE WITNESS: [Interpretation] No.  I say with full responsibility

25     that from all my knowledge of the military system of the Croatian army,

Page 10895

 1     the 7th Guards Brigade was not subordinated to the commander of the Split

 2     Military District.

 3             The statements I have made -- first, in the 2004 statement, there

 4     was a mistake in translation and I corrected it in the 2007 statement,

 5     because I emphasise when I made my statements, I had problems with

 6     interpretation and the wrong understanding of the terms I was using on

 7     the part of the interpreter, which is quite understandable because legal

 8     systems differ.

 9             The statement that I gave to the Defence team, where I mentioned

10     the 7th Guards Brigade, was a statement I gave precisely because I wanted

11     to stress that I had problems related to the Prosecutor's

12     misunderstanding of what I said about various military districts, and the

13     fact that what I said did not mean at all that the 7th Guards Brigade was

14     subordinated to the commander of the Split Military District.

15             JUDGE ORIE:  Your statement in 2008 says that it was

16     subordinated, although not an organic part of it.

17             THE WITNESS: [Interpretation] I'm sorry.  Let me find that.

18             JUDGE ORIE:  At the end of your answer to question 19, you there

19     explained what was not included in your report.

20             THE WITNESS: [Interpretation] Regardless of the fact that here we

21     see language, the report does not include units that were subordinated to

22     the Split Military District, it is it certain that at that moment I did

23     not say it based on any knowledge that they would have been subordinated.

24     Perhaps, when I was giving this statement, the train of my thoughts was

25     directed, rather, at saying that looking at the overall operation, the

Page 10896

 1     7th Guards Brigade was supposed, in its own reports, to include

 2     information about disciplinary measures pronounced and possible

 3     disciplinary infractions or violations.

 4             JUDGE ORIE:  Do I have to understand your answer that if there's

 5     a temporary subordination of a not organic part of a military district,

 6     that the disciplinary powers rest with the other military district,

 7     rather than with the military district in which it, the brigade,

 8     operates?

 9             Is that how I have to understand your answer?

10             THE WITNESS: [Interpretation] I think so.

11             JUDGE ORIE:  You think so, or what's the basis of this thought?

12             THE WITNESS: [Interpretation] I'm really sorry, Your Honour, but

13     could you please repeat your question, once again.

14             JUDGE ORIE:  Yes.  Let's try to keep matters simple; and if I

15     make a mistake, please correct me.

16             I have a brigade, the 7th Guards Brigade.  I temporarily put that

17     brigade in the command structure of the Split Military District.  That

18     means, operationally, it becomes part of that military district.

19             Now, with whom rests the disciplinary powers?  With the command

20     of the Split Military District or with the command of the military

21     district this brigade would be part of, if it would not have been --

22     which is an organic part, if it would not have been moved to the

23     operations of the Split Military District?

24             Mr. Misetic.

25             MR. MISETIC:  Your Honour, I really regret rising, but there is

Page 10897

 1     one thing I may wish to clarify with you in terms of the question without

 2     her being able to listen.

 3             JUDGE ORIE:  Since the witness understands some English, I have

 4     to ask her to leave the courtroom for a second.

 5             MR. MISETIC:  That's okay, Your Honour.

 6             JUDGE ORIE:  I apologise, Ms. Botteri, but Mr. Misetic wants to

 7     raise an issue which it would not be appropriate for you to already hear

 8     about at this stage.

 9             Could you please follow Madam Usher for a second and remain

10     standing by to return into the courtroom.

11                           [The witness withdrew]

12             JUDGE ORIE:  Mr. Misetic.

13             MR. MISETIC:  Yes, Your Honour.

14             Just so you understand, to know what my understanding is, perhaps

15     we could use an example other than the 7th Guards Brigade.  The 7th

16     Guards Brigade didn't formally -- or wasn't a part of any military

17     district.  It was subordinated to directly to the Main Staff and then

18     resubordinated as needed --

19             JUDGE ORIE:  I will apologise, but I don't have these details all

20     immediately on my mind.

21             MR. MISETIC:  Given how specific the witness is in her answers, I

22     wanted you to be aware that that may be an issue with her.

23             JUDGE ORIE:  Yes, I do understand that.  Do you have a better

24     example, because the 7th Guards Brigade, as such, is not vital for the

25     information I'm seeking.

Page 10898

 1             Ms. Gustafson, do you have any problem?  You may have a specific

 2     interest in mentioning the 7th Guards Brigade.

 3             MS. GUSTAFSON:  No, Your Honour, not specifically.

 4             MR. MISETIC:  Your Honour, may I consult with my client for a

 5     second?

 6             JUDGE ORIE:  Yes.

 7             MR. MISETIC:  Thank you, Your Honour.

 8             JUDGE ORIE:  Perhaps I should have formulated it in the negative,

 9     not being an organic part of, rather than the other way.

10             I can even do without an example, Mr. Misetic, if you have a

11     better suggestion.

12             MR. MISETIC:  Well, I'm using the ones that are in her statement.

13             JUDGE ORIE:  Yes.

14             MR. MISETIC:  The 2nd Battalion, 9th Guards Brigade is

15     organically part of the Gospic Military District.  I'm also advised that

16     there may be an issue with posing a question as to taking a disciplinary

17     publish specifically against the a commander of a guards brigade.  That's

18     also something that lies in the, from our position, exclusive

19     jurisdiction of the chief of the Main Staff.

20             JUDGE ORIE:  Ms. Gustafson.

21             MS. GUSTAFSON:  Your Honour, I think that should be an

22     appropriate topic to raise in cross-examination.  I don't think it should

23     be a bar to the question.

24             JUDGE ORIE:  No.  But you are put on notice that that apparently

25     seems to be a specific issue.

Page 10899

 1             Could the witness be brought into the courtroom again.

 2             I apologise for perhaps not always following the strict

 3     adversarial procedures, but this Chamber takes the position that we'd

 4     like to understand what we hear and, therefore, seek clarification now

 5     and then.

 6                           [The witness entered court]

 7             JUDGE ORIE:  Ms. Botteri, you have mentioned in the last part of

 8     your answer to question 19 a number of units, among them the

 9     2nd Battalion of the 9th Guards Brigade; and you said:  "They were not

10     organic parts of the Split Military District."  You also said that they

11     were subordinated.

12             Could you tell us, with whom did the competence, the power rest

13     to discipline -- to take disciplinary actions against members of the

14     2nd Battalion of the 9th Guards Brigade?  Was it the command of the Split

15     Military District, or was it any other authority?

16             THE WITNESS: [Interpretation] Certainly not the command of the

17     Split Military District.

18             JUDGE ORIE:  Then, if not the command of the Split Military

19     District, could you tell us who then was competent to take disciplinary

20     actions against members of that battalion?

21             THE WITNESS: [Interpretation] The battalion which was attached or

22     belonged to the 7th Guards Brigade, so the command of the 7th Guards

23     Brigade.

24             JUDGE ORIE:  Well, it reads in your statement the 9th Guards

25     Brigade.  Did you misspeak?

Page 10900

 1             THE WITNESS: [Interpretation] I apologise.  The 7th Guards

 2     Brigade, yes.  It was a slip of the tongue.

 3             JUDGE ORIE:  [Previous translation continues] ... do I understand

 4     that this battalion was at least under the, even if temporary,

 5     operational command of the Split Military District?

 6             THE WITNESS: [Interpretation] I was the assistant commander for

 7     legal affairs.  I can speak about the facts that I knew of, because they

 8     were within my competence.  As for operational commands, I cannot speak

 9     about that, nor did I know anything about that.

10             JUDGE ORIE:  But you said in your statement that they were

11     subordinated to the Split Military District.  If it was not an

12     operational, even temporary, subordination, what was it then?  I mean,

13     what else is there?

14             THE WITNESS: [Interpretation] What it means is that even if they

15     were operationally subordinated to the Split Military District Command,

16     when it comes to military discipline, the applicable principle was the

17     organic -- the organic element or the organic entity to which

18     perpetrators belong.

19             JUDGE ORIE:  Yes.  Could you give us the legal basis for this

20     legal opinion; case law, legislation?

21             THE WITNESS: [Interpretation] A moment ago, in reply to a

22     question, I mentioned a legal document.  I can't recall what the name of

23     this document was, but it dealt with the division of the area into

24     various military districts.  This is one of the documents upon which the

25     competence relied in disciplinary matters, in matters of military

Page 10901

 1     discipline.

 2             JUDGE ORIE:  Yes.  Now you say you mentioned a legal document,

 3     you don't remember the name, but that's the document where we find it.

 4             THE WITNESS: [Interpretation] Yes.

 5             JUDGE ORIE:  I'm not an expert in this field at all.  If you

 6     referred to a legal document saying that we find the answer there, of

 7     course, this Chamber would very much like to have a look at that

 8     document.  Could you assist us in identifying what it was?

 9             I don't remember whether you gave the name and you have forgotten

10     about it, or whether you gave the name at all.  I don't remember that you

11     gave a name of the document.

12             THE WITNESS: [Interpretation] No, I did not mention the title of

13     this document.  In my reply, I also used the term that, as far as I could

14     remember, I know of a legal document which discussed the matter of

15     military districts.  And in the same reply, I mentioned the Code of

16     Military Discipline, which -- or, rather, from which it arose that in

17     terms of military discipline, the commander of the military district is

18     in charge of such perpetrators, the commander on whose territory of

19     perpetrators are or happen to be.

20             JUDGE ORIE:  Yes.  Could you take to us where the territory is

21     mentioned, or perhaps the parties could assist me.

22             I remember that I think it was in Article 2 or 3 that commander

23     of the military district was mentioned, but what seems to be the real

24     issue is whether it's the organic command or the temporary operational

25     command.

Page 10902

 1             MR. MISETIC:  Your Honour, I'm intend to deal with this at length

 2     in cross-examination.  There's quite a bit of the material that has to be

 3     present the to you --

 4                 JUDGE ORIE:  Yes.  Then perhaps I leave it to that.  Again, I

 5     apologise.  Perhaps we should wait for cross-examination sometimes to

 6     understand what the testimony is about.  But if we would that always, we

 7     would miss quite a lot of understanding of what the evidence is.

 8             MR. MISETIC:  Agreed, Your Honour.  Thank you.

 9             JUDGE ORIE:  Ms. Gustafson, we'll hear more about this at a later

10     stage.

11             Please proceed.

12             MS. GUSTAFSON:  Thank you.

13        Q.   Ms. Botteri, just on the Code of Military Discipline, you agree

14     that Article 26 of the Code allows a commander of a unit to issue

15     disciplinary measures to offenders who are not members of their organic

16     unit.

17             And in your 2007 statement, you describe that provision as

18     saying:  "It was an exception to the rule in urgent cases the officer at

19     hand may take disciplinary action against soldiers even if they are

20     outside his unit."

21             Article 26 states that:  "Such orders may be issued if such

22     measures are required for maintaining order and discipline."

23             Would you agree that the system of military discipline allowed a

24     commander to issue disciplinary measures against members of non-organic

25     units, if the measures are required for maintaining order and discipline?

Page 10903

 1        A.   Yes, this was an exception.  I reiterate, however, that in

 2     practice, because of the overall system, as it was set up by the Code of

 3     Military Discipline, in practice, it was very infrequent and difficult to

 4     implement.  In addition, we cannot overlook the fact that when reading in

 5     isolation a provision from a legal document, we have to view it in

 6     context of the overall document or the overall Code of Military

 7     Discipline in this particular case.

 8             A careful reading of Article 26 shows that the purpose, or,

 9     rather, the intent of the law-maker was for Article 26 to apply to some

10     specific events, as may occur in actual life, because, as it is stated

11     there, it says "commanders of units" -- or, rather, "of garrisons," and

12     then in parentheses, it says "a base, a ship, barracks," and so on and so

13     forth, "hospital," et cetera, et cetera.

14             MS. GUSTAFSON:  [Previous translation continues] ... Court to

15     read.  This is it P1007.  It's at page 9 of the English, and I'm not sure

16     what page in B/C/S.  I no longer have my copy but probably in page 3 or 4

17     of the B/C/S.

18        Q.   In fact, Ms. Botteri, it reads:  "Commanders of units

19     institutions, and garrisons (barracks, camps, medical institutions,

20     ships, ports, et cetera) shall ..."  --

21             JUDGE ORIE:  It's page 4 in the B/C/S.

22             MS. GUSTAFSON:

23        Q.   Again, Ms. Botteri, the provision states that such measures may

24     be implemented if they are required for maintaining order and discipline.

25             Would you agree that that's what this provision provides for and

Page 10904

 1     that the system in military discipline provided for the same?

 2        A.   Yes, I agree; however, I have to note that this is an exception

 3     to the rule.  This is applicable in exceptional circumstances.

 4             Also, we cannot overlook -- we cannot ignore paragraph 2 of this

 5     Article, which states the following:  "In situation where an officer

 6     under paragraph 1 of this Article has decided that it is not necessary

 7     that an offender who does not belong to his unit be immediately punished,

 8     the matter shall be forwarded to the offender's superior officer to deal

 9     with."

10             This means that paragraph 2, in a way, refers or stresses the

11     need to regulate an exceptional situation for immediacy purposes, for

12     urgent matters, and not to be implemented for general -- and not to

13     provide for commanders in general to have the authority to implement

14     disciplinary measures.

15             So this is only to be used in exceptional situations.  We have to

16     know that barracks, camps, medical institutions, ships, ports, et cetera,

17     are such entities where a member belonging to another organic entity can

18     be only be temporarily stationed.

19             MS. GUSTAFSON:  Can he move now to 65 ter 3555.

20        Q.   Ms. Botteri, if you could look at this document, it's a document

21     sent to your department, the legal affairs department of the Split

22     Military District, on the 25th of May, 1995.

23             MS. GUSTAFSON:  And if we could scroll down in the English.

24        Q.   It states:  "We are sending you the enclosed orders on

25     disciplinary measures imposed by the Split Military District commander to

Page 10905

 1     the following members of the HV 2nd Infantry Battalion of the 9th Guards

 2     Brigade."

 3             MS. GUSTAFSON:  And if we could go to the next page of the

 4     English, it is signed by the commander of the 2nd Battalion of the

 5     9th Guards Brigade, Ivica Arbanas.

 6             And if we could go to the next page in both documents, the orders

 7     are enclosed.

 8        Q.   You can see that this is an order issued on the 17th of May by

 9     General Gotovina to Tomislav Matkovic, member of the 9th Guards Brigade,

10     2nd Battalion.  He is being disciplined for entering the area of

11     disengagement on the 17th of May.

12             MS. GUSTAFSON:  And if we could go to the next page in the B/C/S,

13     you can see that it is signed by General Gotovina.  And if we scroll

14     through the B/C/S, there are two identical orders for different members.

15     In the English, there are no translations for these orders because

16     they're the same.

17        Q.   And you will see, Ms. Botteri, scrolling through, that two other

18     members of the 2nd Battalion of the 9th Guards Brigade are being

19     disciplined by General Gotovina for the same infraction.

20        A.   Could you please tell me whether I can see these orders in these

21     materials.  Are they in there?

22        Q.   No.  You have to just look on the screen, they're not in the

23     binders; although, I have a hard copy if that would assist you.

24        A.   Please, if you don't mind, because it is easier when I have it

25     right in front of me, when I have the complete documentary, rather than

Page 10906

 1     just seeing them in isolation, one from the other.

 2             MS. GUSTAFSON:  And the document I gave to the witness include

 3     this 65 ter number and also 65 ter 3556; and, perhaps, we could go to

 4     that document now.  The last document is a document from General Gotovina

 5     to the Main Staff, submitting these orders for evaluation.

 6        Q.   Ms. Botteri, once you have had a look at these documents, if you

 7     could explain to the Court what your view is on the legal basis for

 8     imposing these measures.

 9             Have you had a chance to look at the documents, Ms. Botteri?

10        A.   Yes.

11        Q.   Do you notice that these orders invoke Articles 22 and 33 of the

12     Code of Military Discipline.  Article 22 states that the commander of a

13     brigade or corps or more senior commanders shall be empowered to

14     pronounce all disciplinary measures prescribed under these Code.  These

15     officers shall decide the responsibility of soldiers, guardsmen, reserve

16     soldiers, and cadets for the offences specified in paragraph 1,

17     Article 12.

18             Article 33 of the Code refers to the required contents of a

19     disciplinary order.  These particular disciplinary orders don't refer to

20     Article 26.

21             Can I ask you again to explain to the Court your understanding of

22     the legal basis for these orders.

23             Do you have an understanding --

24        A.   The legal basis is Article 22, which is invoked in the preamble

25     to this order; Article 22.

Page 10907

 1        Q.   Thank you.

 2             MS. GUSTAFSON:  I'm finished with these document, Your Honour.  I

 3     don't have if you have any follow-up questions, but I'd like it tender

 4     them, please.

 5             JUDGE ORIE:  I hear of no objection.

 6             Mr. Registrar.

 7             THE REGISTRAR:  65 ter 3555 becomes Exhibit number P1014; and

 8     65 ter number 3556 becomes Exhibit number P1015.

 9             JUDGE ORIE:  P1014 and P1015 are admitted into evidence.

10             Ms. Gustafson.

11             MS. GUSTAFSON:  Thank you, Your Honour.

12             If we could move now to 65 ter 525, and if we could go to the

13     next page on the B/C/S.

14        Q.   Ms. Botteri, I think you'll recognise this.  It was described in

15     two of your statements.  It's a document from the 10th of November, 1995,

16     authored by you, and it's a report on the third quarter statistics of

17     disciplinary measures in the Split Military District.

18             Do you recognise this document?

19        A.   Yes.

20        Q.   Thank you.

21             MS. GUSTAFSON:  And could we move to page 8 in the English and

22     page six in the B/C/S.

23        Q.   These are the statistics for the quarter.  Is that right?

24        A.   Yes.

25             MS. GUSTAFSON:  And if we could scroll down to the bottom and

Page 10908

 1     blow up the letters underneath the chart, A through H, and if we could

 2     have the English of that as well.  It should be on page 8.

 3        Q.   Ms. Botteri, those letters, A through H, do those correspond to

 4     the disciplinary breaches listed in the Code of Military Discipline in

 5     Article 3, numbers 1 through 8?  So, for example, Article 3, 7,

 6     commission of a crime for which proceedings are initiated ex officio,

 7     corresponds to letter G, and so on.

 8        A.   Yes.

 9        Q.   And you've explained in your statement to the Defence that the

10     military district received only those decisions on the implementation of

11     disciplinary offences issued by brigade commanders and commanders of

12     independent battalions.  All other issued members were presented in the

13     quarterly reports only as statistical data.

14             My question is:  The quarterly reports that you received from the

15     unit, did they -- were they in the same form as this document, in other

16     words, listing the number of disciplinary measures imposed under each

17     provision of Article 3?

18             MS. GUSTAFSON:  If we could go back to the full page in the B/C/S

19     and maybe show more of the page.  Thanks.

20        Q.   The report you received from the units, were they in the same

21     form, indicating the number of measures imposed under each provision of

22     Article 3?

23        A.   I'm sorry.  I'm really sorry, Madam Prosecutor.  My statement was

24     misinterpreted when I said that we received reports only from the

25     directly subordinated command.  We received disciplinary measures for

Page 10909

 1     purposes of evaluation of irregularity from directly subordinated

 2     command.

 3             Statistical reports are something entirely different.  We

 4     received statistical reports from directly subordinated commands, but --

 5        Q.   Ms. Botteri, I am asking about --

 6        A.   Yes?

 7        Q.   I understand that.  I'm asking you what the form of those

 8     statistical reports that you received were in.  Were they in the same

 9     form as this report that you compiled, in other words, listing the number

10     of the disciplinary measures imposed under each provision of Article 3,

11     indicating whether they were imposed on soldiers, guardsmen, or officers,

12     and indicating the type of the punishment imposed?

13             MS. GUSTAFSON:  Perhaps we can split to the English to show that

14     column.

15             THE WITNESS: [Interpretation] I don't remember clearly the form

16     itself, whether it was the same form as the one used for subordinated

17     units.  I don't think it was the same.

18             But their reports did contain numbers broken down by types and

19     sanctions, and they also included information about the status of the

20     offender, similarly as this one report made at command level.

21             MS. GUSTAFSON:

22        Q.   Thank you.  So these -- in these quarterly reports received from

23     the units, did you have any indication in those reports of the type of

24     conduct that was being disciplined, other than which provision of

25     Article 3 was being invoked?

Page 10910

 1        A.   I cannot answer this question with certainty because -- because

 2     the type of infraction was distinguished from the Code, decoded by the

 3     key that you had shown us and zoomed in on a moment ago.  I don't

 4     remember the codes used by various units.

 5        Q.   I'm just asking if there was any additional information on what

 6     type of conduct was being disciplined, other than breaking it down

 7     according to the provision of Article 3 of the Code.

 8        A.   In what sense do you mean "additional information"?

 9        Q.   For example, a description of what the individual incidents were.

10     Did the reports from the units actually describe in words what the

11     incidents were, or was just these numbers.

12        A.   No, no.  These were just ordinary statistical data, simple

13     figures.

14        Q.   Okay.

15             MS. GUSTAFSON:  And, so, if we look at the entry for the post

16     code 8311 which is near the bottom, four from the bottom, further up.

17     There we go.

18        Q.   8311 is the 6th Home Guard Regiment indicating 144 measures

19     imposed for the quarter.  And in the documents you were shown yesterday

20     of the 83 incidents for August and September that were sent to the Split

21     Military District, one of those dealt with a member of the 6th Home Guard

22     Regiment.

23             My question is:  Based on the reporting system you've described,

24     when you were compiling this report, would you have had any idea of what

25     type of misconduct being punished for these 144 incidents, other than

Page 10911

 1     which provision of Article 3 they fell under?

 2             JUDGE ORIE:  Mr. Misetic, no?  Just responding to your body

 3     language, but let's proceed.

 4             MR. MISETIC:  Perhaps if I could just get a reference to the

 5     document yesterday that counsel is referring to.

 6             MS. GUSTAFSON:  Sorry.  It was the documents underlying the chart

 7     that was 65 ter 6017, which actually reminds you me, Your Honour, I

 8     neglect neglected to get a number for that chart.

 9             JUDGE ORIE:  No number was assigned to neither of the charts?

10             MS. GUSTAFSON:  The second one was, was Your Honour.  It was the

11     first one that --

12             JUDGE ORIE:  Yes, it was the first one, the first one being the

13     "known examples of."  That's --

14             MR. MISETIC:  I have no objection to it being added to the 65 ter

15     list and admitted into evidence.

16             JUDGE ORIE:  Then, Ms. Gustafson, you're seeking leave to add it

17     to the 65 ter list and have it admitted into evidence?

18             MS. GUSTAFSON:  Yes, Your Honour.

19             JUDGE ORIE:  Mr. Registrar.

20             THE REGISTRAR:  Your Honour, 65 ter 6017 becomes exhibit

21     number P1016.

22             MS. GUSTAFSON:

23        Q.   Did you understand my question, Ms. Botteri --

24             JUDGE ORIE:  Perhaps I could first give a decision --

25             THE WITNESS: [Interpretation] I would still like it repeated.  We

Page 10912

 1     don't have the whole table shown on the screen.  You mentioned the

 2     number 144, if I remember correctly.

 3             JUDGE ORIE:  I think that is the column showing the total, and I

 4     think we have to move down a little bit.

 5             THE WITNESS: [Interpretation] In total, yes.  Then further down,

 6     it's not 144.  It's lower.  You have to go lower for the total figure.

 7     That's 1.431.  Is that the number you mean?

 8             MS. GUSTAFSON:

 9        Q.   No.  I mean the number 144 for the entry for post code 8311, the

10     6th Home Guards Brigade, which is four from the bottom.

11        A.   Uh-huh.  All right.

12        Q.   And --

13        A.   Good.  Because I don't remember these codes for various units.

14             So 8311 and the column where you see 144?

15        Q.   That's right.  My question is -- our records show that a report

16     came to the Split Military District Command regarding one disciplinary

17     measure, an individual measure taken against a member of the 6th Home

18     Guard Regiment, and my question is:  Based on the reporting system, when

19     you compiled this report, did you have any idea what type of conduct was

20     being disciplined for these 144 incidents, other than the break down for

21     each provision of Article 3 that was being invoked?

22        A.   Just based on the code and the number, I have no other knowledge,

23     no other information, such as a description.  There's just the code and

24     the number.

25        Q.   Thank you.  Now, I'd --

Page 10913

 1             JUDGE ORIE:  Before you move on Ms. Gustafson, the 65 ter 6017 is

 2     admitted into evidence, and this implies that leave is granted to add it

 3     to your 65 ter list.

 4             MS. GUSTAFSON:  Thank you, Your Honour.

 5             JUDGE ORIE:  Please proceed.

 6             MS. GUSTAFSON:

 7        Q.   Now, I'd like to ask you a couple of questions about reserve

 8     units.  In your 2007 statement, you said:  "The rules of the military

 9     discipline and the possibilities of taking disciplinary action were not

10     applied equally toward reserve forces as they were towards professional

11     units."

12             Then, in your Defence statement in paragraph 10, you said:  "It

13     was my subjective view that the commanders would rather get rid of their

14     problematic reservist by simply substituting them for another soldier in

15     cooperation with the defence office than to engage in conducting

16     proceedings to establish disciplinary responsibility."

17             In light of this practice that you've described, my question is:

18     Was there any concern amongst the Split Military District Command that

19     reserve soldiers might not have been properly or adequately punished for

20     their misconduct?

21             MR. MISETIC:  Your Honour, I'd ask, then, that the rest of the

22     sentence be read to her in light of the question.

23             JUDGE ORIE:  Ms. Gustafson, I invite you to meet the request of

24     Mr. Misetic.

25             MS. GUSTAFSON:  Yes, Your Honour, I can.  I'm not sure it's

Page 10914

 1     necessary.

 2        Q.   The rest of the sentence says:  "For many, this presented a

 3     graver punishment than the one prescribed by the Code."

 4             My question is:  Was there any concern amongst the Split Military

 5     District Command that reserve soldiers might not have been properly or

 6     adequately punished for their misconduct.

 7        A.   Excuse me.  Which paragraph is that in my statement?

 8        Q.   Ms. Botteri, the question is a simple one.  Was there any concern

 9     amongst the Split Military District Command that reserve soldiers might

10     not have be --

11             JUDGE ORIE:  Ms. Gustafson, the question may have been simple.

12     If you put a certain portion of a statement to a witness, and if she has

13     apparently difficulties in fully remembering what is in there, she should

14     have an opportunity it re-read it, even if the question is perfectly

15     clear.

16             MS. GUSTAFSON:  Perhaps the usher could assist the witness in

17     finding the answer to question 10 in her 2008 statement.  It's on page 5.

18     Sorry.  That was in the English.  Sorry.  It's the answer to question 10.

19             THE WITNESS:  Okay.  Thanks.

20             [Interpretation] All legal regulations, including the regulations

21     on military discipline, applied equally to active duty personnel and

22     reserve personnel of the Croatian army; however, in practice, in view of

23     the variety of disciplinary measures and sanctions, many of them were

24     ineffectual when applied to the reserve personnel of the Croatian army.

25        Q.   Ms. Botteri.

Page 10915

 1        A.   Yes?

 2        Q.   Article 10 of the Code provides for caution, reprimand,

 3     confinement to barracks for up to seven days, and detention in military

 4     custody for up to 30 days; and we've also seen measures deducting the

 5     pay, particularly from guardsmen.

 6             Now, whether or not a reserve soldier was being paid or not, or

 7     how much, would you agree that a caution, a reprimand, a confinement to

 8     the barracks, or detention in military custody were all measures that

 9     could be applied to reserve soldiers?

10        A.   Yes, yes.  That's what I just said, that the Code of Military

11     Discipline applied equally to both active duty and reserve soldiers.  But

12     I said that in my statement that it was my subjective perception that

13     many commanders of reserve soldiers got rid of them by simply

14     demobilizing them.

15             If you allow me to explain, the main task of every military

16     commander, the primary task of military commander, is to ensure order and

17     discipline in his unit, in order to perform his mission.  If a reserve

18     soldier is creating problems, then - this is my personal opinion - the

19     commander was tempted to get rid of that soldier by demobilizing him,

20     rather than starting a very complicated and long process that would lead

21     to the punishment of such a soldier.

22             JUDGE ORIE:  Mr. Misetic.

23             MR. MISETIC:  Your Honour, my objection is in light of the

24     question.  For partial readings of provisions of Code, I think the

25     witness should be entitled to see the complete Article which she is being

Page 10916

 1     referred to so that she can provide an answer.  Because if she had the

 2     Code in front of her, she might be able to respond.

 3             MS. GUSTAFSON:  She has the Code.

 4             JUDGE ORIE:  She has the Code in front of her; and, of course, at

 5     the same time, we should not forget that this witness apparently has

 6     worked in this area of law for quite a period of time, but we could ask

 7     her.

 8             Ms. Botteri, if you feel any need to further read legal

 9     provisions in legal instruments that are presented to you, please let me

10     know.  You can ask for it.

11             MR. MISETIC:  Your Honour, if I may just add, I don't have a -- I

12     agree with that proposition.  My specific objection, though, is if

13     portions of it are going to be read to her, then she should be entitled

14     to see the entire provision.  It Article 11, and then it would make --

15             JUDGE ORIE:  If you would always, Ms. Gustafson, mention the

16     portion you're reading, I don't remember whether you did it in this case,

17     so that the witness has an opportunity to look at the text.

18             MS. GUSTAFSON:  I did, and I will, Your Honour.

19             JUDGE ORIE:  Yes.

20             Well, the witness has had a lot of time now, I think, to read

21     what she apparently is reading.

22             MS. GUSTAFSON:  She --

23             JUDGE ORIE:  Could you repeat your question.

24             MS. GUSTAFSON:  She answered that question, so I would just like

25     to move on.

Page 10917

 1        Q.   I'd just ask, Ms. Botteri, is it your view, then, that the

 2     practice of simply demobilizing a problematic reserve soldier was

 3     sufficient disciplinary punishment that was, in your view, adequate?

 4        A.   I'd like to clarify also on your previous question.  I feel the

 5     need to say that it's not true that reserve soldiers were not subject to

 6     sanctions envisage the by the Code of Military Discipline.

 7             But along with the punishments prescribed by the Code, there were

 8     also, in application, some sanctions that were not prescribed in legal

 9     texts that were applied; and such unprescribed punishments were harder on

10     the soldier concerned, much harder than any sanction actually envisaged

11     by the Code, and we can see that from the Code itself.

12             For disciplinary infractions, under Article 10, there was the

13     possibility of caution, reprimand, detention in a military detention

14     facility up to 30 days.  That applied only to soldiers, not NCOs and

15     officers.  Also, another possibility was the suspension of leave and

16     prohibition of exit from the barracks.

17             I apologise to the interpreters.  I have just been told that I'm

18     reading too fast.

19        Q.   And when you talk about unprescribed punishments, is --

20        A.   Article --

21        Q.   When you talk about unprescribed punishments, is this the

22     demobilization practice that you are talking about?

23             MR. MISETIC:  Your Honour, again, I'd ask that she be allowed to

24     finish the last portion of her answer concerning Article 11.

25             MS. GUSTAFSON:  Your Honour, I ask that she direct her answers to

Page 10918

 1     my questions more precisely.

 2             MR. MISETIC:  It's in Article 11.  That is what I was hoping she

 3     was going to get to.

 4             JUDGE ORIE:  The witness, when you started requesting a question,

 5     the witness spoke as well, Ms. Gustafson.  Perhaps you should allow --

 6             THE WITNESS: [Interpretation] May I continue?

 7             JUDGE ORIE:  Please do so.

 8             THE WITNESS: [Interpretation] Article 11 speaks of disciplinary

 9     infractions, and it enumerates the various sanctions that may be

10     pronounced for these infractions; namely, those that apply only to

11     officers and NCOs, and those were suspension of promotions for one to two

12     years --

13             JUDGE ORIE:  Let me stop you there, Ms. Botteri.

14             Ms. Gustafson's questions are focussing on the, well, let's say,

15     informal sanctions which were not provided for by the law.  So, perhaps,

16     mentioning everything that is in the law might not be a focussed answer

17     to what she apparently wants to ask you.

18             Ms. Gustafson, perhaps you could phrase or rephrase the question

19     you have in mind.

20             THE WITNESS: [Interpretation] All right.

21             Enumerating these sanctions envisaged under Article 11, I only

22     wanted to explain why I had this feeling, this subjective perception,

23     that unprescribed punishments, such as demobilization, were much harder

24     and more drastic a punishment for such a soldier, especially --

25             JUDGE ORIE:  [Previous translation continues] ...

Page 10919

 1             THE WITNESS: [Interpretation] -- if we bear in mind the social

 2     circumstances --

 3             JUDGE ORIE:  Ms. Botteri, it's clear that it's your assessment

 4     that these sanctions provided for by law were perhaps often of a less

 5     serious impact on the perpetrator.

 6             Ms. Gustafson, your next question, please.

 7             MS. GUSTAFSON:  Thank you, Your Honour.

 8        Q.   And were these informal measures, like the practice of

 9     demobilizing problematic reserve soldiers, was there any systematic

10     reporting of those measures to the Split Military District Command?

11        A.   No.

12        Q.   So --

13        A.   Demobilization was carried out through the competent defence

14     office, not through the command of the military district.  It was between

15     the brigade commander and the competent defence office.  If there had

16     been reports about that, then it would no longer be my subjective

17     perception or a feeling.  We would have documentation about it.

18        Q.   Thank you.

19             MS. GUSTAFSON:  Sorry.  I wasn't finished with 65 ter 525, if

20     that could be brought back up.

21             JUDGE ORIE:  Ms. Gustafson, if this will be of the first of a

22     series of questions, I think we first should have a break.

23             MS. GUSTAFSON:  I just wanted to ask one more question on this,

24     and then --

25             JUDGE ORIE:  And conclude your examination?

Page 10920

 1             MS. GUSTAFSON:  Your Honour, I have more questions that I'd like

 2     to ask.

 3             JUDGE ORIE:  Let's see.  If you put this question, then we will

 4     discuss about timing.

 5             MS. GUSTAFSON:  If we can go back to the chart on, I think, the

 6     last page in B/C/S, page 6 in B/C/S.

 7        Q.   Now, Ms. Botteri, you see the first post code is 1080.  That's

 8     the Split Military District Command.  My question for you is:  If General

 9     Gotovina had taken any disciplinary measures against any of his

10     subordinates in the third quarter, would those measures have been

11     recorded here under the first -- in the first row of this chart?

12        A.   Yes.

13        Q.   Thank you.

14             MS. GUSTAFSON:  Could I have a number for this, Your Honour.

15             JUDGE ORIE:  Mr. Registrar.

16             THE REGISTRAR:  Your Honours, this becomes Exhibit number P1017.

17             JUDGE ORIE:  I asked for a number because I saw no signs of

18     objections.

19             P1017 is admitted into evidence.

20             Ms. Gustafson, we'll have a break, but we'll first ask the

21     witness to follow Madam Usher to leave the courtroom.

22             We'll have a break, Ms. Botteri, of approximately 20 minutes.

23             THE WITNESS: [Interpretation] Thank you.

24                           [The witness withdrew]

25                           [Trial Chamber confers]

Page 10921

 1             JUDGE ORIE:  Ms. Gustafson, how much more time you would need?

 2             MS. GUSTAFSON:  If I could have another 15 minutes, Your Honour,

 3     I think I could cover the basics of what else I wanted to cover.

 4             JUDGE ORIE:  Yes.  Usually, if the Chamber says that we'll see

 5     how the testimony develops, that is a kind of, well, a warning is perhaps

 6     too strong, but at least a reminder that time should be used in an

 7     efficient way.  Here, we have observed how the testimony developed, and

 8     we'll grant you the time you need.

 9             MS. GUSTAFSON:  Thank you very much, Your Honour.

10             JUDGE ORIE:  Mr. Misetic.

11             MR. MISETIC:  Your Honour, that's fine with me.  I just wanted t

12     make the Court aware that I am going to need a substantial of amount on

13     cross.  In light of the fact that tomorrow is a Friday, and I know the

14     Court's preference to let witnesses leave on a Friday, I wanted to the

15     Court to be aware of it right now.

16             JUDGE ORIE:  Yes, I'm aware of that.  I don't know how much time

17     you had in mind, Mr. Misetic.  Perhaps we could already inquire into

18     that, but also tell me whether you calculated the --

19             MR. MISETIC:  I understand your point, Your Honour.

20             JUDGE ORIE:  -- I would say, the not fully 100 percent focussed

21     responsiveness of this witness.

22             MR. MISETIC:  Much like Ms. Gustafson, my two and a half may be

23     somewhere around twice that, so ...

24             JUDGE ORIE:  Could I ask other Defence counsel.

25             Mr. Kay, let's say with your initial assessments, and then the

Page 10922

 1     Chamber will be able to see how also in cross-examination the testimony

 2     develops.

 3             MR. KAY:  Your Honour, for my part, it depends what remains to be

 4     asked by the Prosecution, what goes before me, but I have in mind a half

 5     an hour slot.

 6             JUDGE ORIE:  Yes.

 7             Mr. Mikulicic.

 8             MR. MIKULICIC:  Of course, Your Honour, it depends on the

 9     previous examination; but as from now on, I wouldn't have any questions

10     on that witness.

11             JUDGE ORIE:  No questions.

12             So there is a good expectation that we could finish the testimony

13     of this witness by tomorrow, but it still is full of uncertainty, to say

14     the least.

15             We'll have a break, and we'll resume at 1.00.

16                           --- Recess taken at 12.40 p.m.

17                           [The witness entered court]

18                           --- On resuming at 1.05 p.m.

19             JUDGE ORIE:  Ms. Gustafson, you may proceed.

20             But, first, Ms. Botteri, I would like to invite you to focus your

21     answers very much on the question.  If any further details are expected

22     from you, the person examining you will certainly ask for these details.

23             So would you please focus your answers on the core of the

24     question that has been put to you.

25             Ms. Gustafson.

Page 10923

 1             MS. GUSTAFSON:  Thank you, Your Honour.

 2        Q.   Ms. Botteri, I'd like to turn to another topic now which is the

 3     5th of August, 1995, and your trip to Knin on that date.

 4             And in your first statement, you explained that when you heard

 5     that Knin had been liberated, you decided to go to Knin to be with your

 6     command.  "We left Split at about 11.00 on the 5th of August, arriving at

 7     about 1600 hours at Knin castle, where all the political representatives

 8     had gathered."

 9             My first question is:  Which other members of the Split Military

10     District Command went to Knin on the 5th August?

11        A.   I cannot answer that question.  I don't know how.

12        Q.   You said you went to Knin on the 5th of August because you wanted

13     to be with your command.  Who else from the command was in Knin on the

14     5th of August?

15        A.   I said that I went to Knin; although I didn't have to go, I

16     decided to.

17             JUDGE ORIE:  Ms. Botteri, could you please tell us who were

18     there, not whether you went there voluntarily, whether you had to go

19     there.  The question is quite simple:  Who else of the Split Military

20     District Command were there in Knin on that day.

21             THE WITNESS: [Interpretation] I saw some people from the

22     4th Brigade.

23             MS. GUSTAFSON:

24        Q.   And who from the command was there?  You've named some of these

25     people in your statement.  Rahim Ademi, Gotovina's Chief of Staff, was he

Page 10924

 1     in Knin on the 5th of August?  Yes, no, or I don't know.

 2        A.   I don't know.  I didn't see him.

 3        Q.   And what about Coric, assistant commander for logistics?

 4        A.   I didn't see him either.  I don't know if he was there.

 5        Q.   What about Ivan Zelic, assistant commander for information and

 6     political activities?

 7        A.   I think that I didn't meet him either.

 8        Q.   Do you remember anyone from the Split Military District Command

 9     being there.

10        A.   [No verbal response]

11        Q.   You're shaking your head.  Is that no?

12        A.   My driver was with me, a lawyer from my service.

13        Q.   I'm not interested in your driver or a lawyer from your service.

14     The question was about members of the command.  If you can't remember,

15     could you please just say you can't remember and we can move on.

16        A.   I can't remember.

17        Q.   Thank you.  Now, you said, in your statement, you arrived in Knin

18     at about 1600 hours.  My question is:  Did you see any signs of combat in

19     Knin at that time?

20        A.   Yes.

21        Q.   And what did you see?

22        A.   In Knin town, I stayed on the main road, main street.  I saw many

23     soldiers; and, at one point, I think I saw a soldier from the 4th Brigade

24     being injured and then he was carried away.  The street that I was on

25     looked like a street through which an army had passed.  There were a lot

Page 10925

 1     of broken windows on shop, shop windows.

 2        Q.   Did you see -- were there any signs to you that the fighting was

 3     still going on; or did the fighting appear to you to be over?

 4        A.   No, there were no signs of fighting going on.

 5        Q.   And you said you saw a lot of broke windows on shop, shop

 6     windows.  Did you see -- did it appear to you that the items in the shop

 7     were still in the shop; or did it appear to you that items had been taken

 8     out of the shops on which the windows were broken?

 9        A.   Well, halfway, sort of; some were gone.

10        Q.   So, just to clarify, in some of the shops where the windows were

11     broken, you saw that items were gone?

12        A.   Yes.

13        Q.   Thank you.  I'd like to turn to another topic.

14             MS. GUSTAFSON:  If the witness could be shown --

15             JUDGE ORIE:  Yes.  Could I ask one clarifying question.

16             You told us about a soldier from the 4th Brigade being injured.

17     Did you see him getting this injury and could you tell us what you saw;

18     or is it that you saw a soldier of the 4th Brigade who had been injured

19     and was carried away?  Did you see the moment of being injured?

20             THE WITNESS: [Interpretation] No.  I saw when the medical service

21     came to assist him, and I think it was the fatal outcome, based on what I

22     learned later.

23             JUDGE ORIE:  Thank you.

24             Please proceed.

25             MS. GUSTAFSON:  Thank you, Your Honour.

Page 10926

 1             If the witness could be shown Exhibit D32.

 2        Q.   Ms. Botteri, do you recognise this document as the service

 3     regulations of the armed forces?

 4        A.   Yes.

 5        Q.   Were these regulations in effect in 1995?

 6        A.   Yes.

 7        Q.   Thank you.

 8             MS. GUSTAFSON:  Could we turn to page 18 in the B/C/S and page 21

 9     in the English.

10        Q.   Ms. Botteri, if could you read Article 52, which states:  "The

11     garrison commander is responsible for billeting, order, discipline, and

12     service in the garrison.  All units and institutions within the garrison

13     are subordinate to the garrison commander, as regards the issues of

14     order, discipline, and service."

15             My question for you is:  Did garrison commanders have

16     disciplinary authority and could garrison commanders take disciplinary

17     measures against members of units and institutions within the garrison?

18             MR. KAY:  Should we establish, first of all, a foundation of the

19     knowledge by this witness of such a matter?  I know it's a matter of --

20             JUDGE ORIE:  Mr. Kay --

21             MR. KAY:  -- some expertise, and let's find out if that's the

22     case.

23             JUDGE ORIE:  Mr. Kay, I allow Ms. Gustafson to put this question

24     without any prior exercise in relation, in respect of this witness.

25             Ms. Gustafson, perhaps you repeat the question.

Page 10927

 1             MS. GUSTAFSON:  Thank you.

 2        Q.   The question, Ms. Botteri, was:  Could garrison commanders take

 3     disciplinary measures against members of units and institutions within

 4     the garrison.

 5        A.   I cannot answer your question.  I think that I said in my first

 6     statement given to the Office of the Prosecutor that the status and

 7     powers or authority within the garrison were not a matter that was clear

 8     to me, and there's nothing I can say about it.

 9        Q.   Thank you.

10             MS. GUSTAFSON:  Your Honour, I have no further questions.

11        Q.   Thank you, Ms. Botteri.

12             JUDGE ORIE:  Thank you, Ms. Gustafson.

13             Ms. Botteri, you will now be cross-examined by Mr. Misetic.

14     Mr. Misetic is counsel for Mr. Gotovina.

15                           Cross-examination by Mr. Misetic:

16        Q.   Good afternoon, Ms. Botteri.

17        A.   Good afternoon.

18        Q.   You were asked some questions this morning about a commission

19     that had been established to determine who had unlawfully entered into

20     some participants in Split, and it was represented to you that this was

21     an example of a commission being formed to investigate, at least in part,

22     disciplinary infractions against "unknown offenders."

23             And I would like to show you the actual order that General

24     Cervenko, the Chief of Staff, sent to the Split Military District.

25             MR. MISETIC:  So if I may please have 1D58-0032, Mr. Registrar.

Page 10928

 1        Q.   Now, this is the actual order that General Cervenko issued to

 2     General Gotovina on the 23rd of August in which General Gotovina is being

 3     ordered to form this commission on the basis of information that has been

 4     given to General Cervenko.

 5             And if you look through that, General Cervenko actually orders

 6     that you, as the assistant commander for legal affairs, be a part of that

 7     commission, and General Cervenko seemed to order who else would be parts

 8     of that commission.  It orders that -- that the disciplinary

 9     responsibility be established.  Section V states:  "That the commander of

10     the Split MD is obligated to immediately initiate disciplinary

11     proceedings."

12             And towards the end, at the bottom, when it talks about the

13     military police, it says:  "... and file criminal charges in cooperation

14     with the military," it should say military police not military post

15     office," to the competent military prosecutor's office in Split."

16             So General Cervenko did not, first of all, as you see in the

17     order, he did not cite Article 9 of the military police regulations and

18     suggest that General Gotovina had this power on his own.  General

19     Cervenko says, "In cooperation with the military police ..."

20             Do you see that?

21        A.   Which number?

22        Q.   [Previous translation continues] ... sorry.

23             MR. MISETIC:  I'm still listening on channel, Your Honour, so I

24     will be cautious of the speed of my questions.

25        Q.   In section V of the order, in the Croatian version, if you would

Page 10929

 1     read the last three lines of section V, it says:  "In cooperation with

 2     the military police..."

 3             Do you see that?

 4        A.   "In cooperation with the military police, file criminal charges

 5     to the competent military prosecutor's office in Split."  Right.  I can

 6     see that.

 7        Q.   General Cervenko did not say to General Gotovina, "Use your

 8     powers to order the military police to conduct a criminal investigation."

 9             Is that correct?

10        A.   Yes.

11             MR. MISETIC: [Previous translation continues] ... turn to the

12     next page in the Croatian, please, and in the English as well.

13        Q.   Now, attached to the order is a letter from the owners of the

14     apartment building to General Cervenko --

15             THE INTERPRETER:  Could counsel please speak into the microphone.

16     Thank you.

17             MR. MISETIC:

18        Q.   [Previous translation continues] ... by the name, the persons who

19     are members, according to this letter, of the 4th Guards Brigade, by

20     name, who had unlawfully entered these apartments.  Do you see that?

21             Do you recall that as part of your work on the commission?

22        A.   Yes.

23        Q.   So, let's explain this now.  The disciplinary investigation began

24     with specific names of specific perpetrators.  Do you see that?

25        A.   Yes.

Page 10930

 1        Q.   Now, in any disciplinary --

 2             THE INTERPRETER:  Could counsel please speak into the microphone

 3     to his right.

 4             JUDGE ORIE:  You're invited to speak into the microphone at your

 5     right, which --

 6             MR. MISETIC:  Right.  Okay.  Thank you.

 7        Q.   With respect to disciplinary proceedings for major violations of

 8     discipline, even if the commander had eye-witnesses who told him about

 9     this major violation, he would still have to, under the rules, begin a

10     process of affirming that individual's disciplinary responsibility before

11     the military disciplinary court.  Is that correct?

12        A.   Yes.

13             JUDGE ORIE:  Ms. Gustafson.

14             MS. GUSTAFSON:  I apologise for interrupting.  I just --

15     Mr. Misetic stated that the letter identified by name the persons who are

16     members, according to the letter, of the 4th Guards Brigade, and maybe

17     it's on a different page.  I don't see those names on this page, but --

18             MR. MISETIC:  [Microphone not activated] if we can turn the page

19     in the Croatian version, and the English, I guess.

20        Q.   So my question, or my point - and you tell me if you think I'm

21     wrong - but any disciplinary proceeding starts off only with a suspicion

22     that the person breached military discipline until that person's

23     responsibility is formally affirmed in front of the relevant authority

24     under the Code that is responsible for confirming that person's

25     responsibility.  Correct?

Page 10931

 1        A.   Yes, certainly.

 2             MR. MISETIC:  [Previous translation continues] ... ask that this

 3     exhibit be marked, and I tender it into evidence.

 4             MS. GUSTAFSON:  No objection, Your Honour.

 5             JUDGE ORIE:  Mr. Registrar.

 6             THE REGISTRAR:  Your Honours, this becomes Exhibit number D879.

 7             JUDGE ORIE:  D879 is admitted into evidence.

 8             MR. MISETIC:  Thank you.

 9             Mr. Registrar, if we could now have P1013, please.

10        Q.   Let me ask you a preliminary question, Ms. Botteri.  As the

11     assistant in the military district command, it's true, is it not, that,

12     oftentimes, you would write up an order for General Gotovina's signature?

13     Is that correct?

14        A.   Yes.

15             MR. MISETIC:  Mr. Registrar, if we could go to the last page in

16     this document.

17        Q.   And was it common practice in the Split Military District Command

18     that people who were in charge of different areas would oftentimes right

19     up the order that needed to be issued and General Gotovina would review

20     it and sign it?

21        A.   Yes.

22             MR. MISETIC:  If we could go -- yes, that's the right -- sorry.

23     If we could go to the prior page in the Croatian.

24        Q.   And were you aware that sometimes people were authorised to sign

25     documents on General Gotovina's behalf even, if it was necessary?

Page 10932

 1        A.   Yes.

 2        Q.   Now, you're looking at this order.

 3             MR. MISETIC:  And if we could, I believe, find the right page in

 4     the English, I believe it's the next page.  It's dated 8 September.

 5        Q.   Now, this is the order you were asked about this morning, and it

 6     says -- as written, it says:  "I hereby order," and then part 1 b talks

 7     about ordering the 72nd Military Police Battalion commander to file

 8     criminal charges.

 9             Now, are you aware of the practice or was it a routine practice

10     when the Split Military District Command received an order from the

11     Main Staff that it would often repeat the basic contents of that order to

12     its subordinated units?  Was that a common practice?

13        A.   Yes, that was common practice.

14        Q.   And this order says that it's based on the order of General

15     Cervenko which I just showed you.  However, unlike General Cervenko's

16     order, which says to file the reports in cooperation with the military

17     police, this order, as written, talks about ordering them to file.

18             Do you see that?

19        A.   Could you repeat that question, please.

20        Q.   In comparing the order of General Cervenko, which we just

21     discussed, that it said that General Gotovina should act in cooperation

22     with the military police.  Do you recall that?

23        A.   Yes, yes.

24        Q.   The results of your commission here are now being reported back

25     to General Cervenko, and the order says that, on its face, that it is

Page 10933

 1     being issued pursuant to General Cervenko's order.  Do you see that?

 2        A.   Yes.

 3        Q.   Okay.  But General Cervenko's order, you agreed with me before,

 4     doesn't say to General Gotovina to order the military police to do

 5     anything.  Correct?

 6        A.   No, it doesn't.  Correct.

 7        Q.   Okay.  So, is it possible that when this order was written and

 8     someone was perhaps following General Cervenko's order that the language

 9     used did not mirror the language that General Cervenko used?

10        A.   That's possible.

11        Q.   Let me ask you a general question.  Outside of this order, have

12     you ever seen in your years of work in the Split Military District or did

13     the Prosecution ever show you any other order by General Gotovina to the

14     military police to file criminal charges?  Have you ever seen any other

15     order like that, other than this?

16        A.   No.

17        Q.   Now, you were shown yesterday --

18             MR. MISETIC:  I'm switching topics, Your Honour.  I don't know --

19             JUDGE ORIE:  Let me see.  The suggestion is that it was just

20     passing an order of identified persons.  I'm just trying to compare the

21     list of names that were reported by the --

22             MR. MISETIC:  That's not my suggestion, Your Honour.  I'm saying

23     the commission was formed on the basis of specific --

24             JUDGE ORIE:  Yes.  But the issue apparently was, is this a

25     commission which deals with the identified perpetrators or unknown

Page 10934

 1     perpetrators?  Now, I see that the commission is established.

 2             Perhaps we could move to the second page of what we see on the

 3     screen now as well.

 4             I see a letter which apparently starts some kind of a procedure,

 5     mentioning persons who have illegally occupied apartments.

 6             Now, in the follow-up, I see, if I'm not mistaken and, therefore,

 7     I would like to check that, I see orders to take measures against

 8     persons.  The names of the persons have been identified of importance

 9     because they were apparently known suspects, not unknown suspects.

10             I'm just comparing by number and by name these lists and see

11     whether the one is and that is at least what I understood to be the

12     suggestion is just a follow-up of what happened earlier.

13             Now, I haven't got this.  I have to play with my screens, rather

14     than having hard copies.

15             MR. MISETIC:  If I could, Your Honour, tell you that by tomorrow

16     morning I'll get you the answer to that, just so that I can fish what I

17     have to do today.

18             JUDGE ORIE:  Fine, fine.  You know what my --

19             MR. MISETIC:  Let me also state --

20             JUDGE ORIE:  -- on my mind.

21             MR. MISETIC:  -- that the issue for us, as well, is you're

22     talking about real property.  Someone is either in the apartment or not

23     in the apartment, so --

24             JUDGE ORIE:  Yes.

25             MR. MISETIC:  -- it's a point of argument for later, Your Honour.

Page 10935

 1             JUDGE ORIE:  I see that point as well.  I'm just wondering to

 2     what extent --

 3             MR. MISETIC:  I mean --

 4             JUDGE ORIE:  -- the language was copied from one to another and

 5     whether then also the names are copied from one order to another --

 6             MR. MISETIC:  [Overlapping speakers] ... I will --

 7             JUDGE ORIE:  [Overlapping speakers] ... whether it is different.

 8             MR. MISETIC:  [Overlapping speakers] ... I will take care of

 9     that --

10             JUDGE ORIE:  You will deal with that --

11             MR. MISETIC:  -- in the morning.

12             Thank you, Your Honour.

13             JUDGE ORIE:  Let's proceed.

14             MR. MISETIC:

15        Q.   Now, you were asked about a chart that talked about actions taken

16     by General Gotovina concerning disciplinary measures in August and

17     September 1995.  Now, let me ask you:  How did these matters or why did

18     these matters come to the attention of the Split Military District?  Do

19     you recall the chart?

20        A.   Yes.  In what sense do you mean how it was brought to the

21     attention?

22             MR. MISETIC:  [Previous translation continues] ... Exhibit P1010

23     on the screen, please -- or P1016.  Sorry.

24        Q.   Now, actually this is the second chart, but it is just as well.

25     I have some questions for you on this as well.

Page 10936

 1             Why are these matters being reported to the Split Military

 2     District Command?

 3        A.   Certain units reported to the Military District of Split because

 4     we had the job to provide the totality of this information to the

 5     administration for general affairs in the ministry.

 6        Q.   [Previous translation continues] ... about General Gotovina

 7     assessing the imposed disciplinary measure.  My question is:  Can you

 8     tell the Court what -- in what instances would General Gotovina be

 9     required to assess a disciplinary measure?

10        A.   General Gotovina was in a position to assess the regularity and

11     the adequacy of an individual disciplinary measure, only if that

12     disciplinary measure had been pronounced by his direct subordinate.

13     Looking at military hierarchy, it could only have been a disciplinary

14     measure pronounced by the commander of the brigade or the independent

15     battalion that had the status of brigade.

16        Q.   [Previous translation continues] ... explain that if -- well,

17     let's take the 4th Guards Brigade as an example.  Let's say General

18     Krsticevic, the commander of the 4th Guards Brigade, issues a

19     disciplinary measure against his subordinate, would that -- would that be

20     an instance where General Gotovina would review the disciplinary measure?

21        A.   Correct.

22        Q.   Now, did he review every disciplinary measure or only those

23     measures that were appealed?

24        A.   He evaluated the adequacy of all disciplinary measures pronounced

25     by the brigade commander with the proviso that this evaluation of

Page 10937

 1     adequacy did not deal with the merits.  It was an evaluation of

 2     procedural adequacy; that is, whether it was in keeping with the Code of

 3     Military Discipline.

 4        Q.   [Previous translation continues] ...

 5        A.   Only the order was submitted for evaluation, not the accompanying

 6     documentation.  If an appeal was filed, then that appeal was decided.

 7        Q.   So the only time that -- if there was an appeal, then that would

 8     be an instance where you receive the complete file and you would be able

 9     to reevaluate the merits.  Is that correct?

10        A.   Correct.  Only in cases of appeal.  Then, at our own request, we

11     would get the documentation.  Evaluation of regularity did not require

12     the provision of a file.  That is also in the Code.

13        Q.   Now, let's take the next level.  If a battalion commander of the

14     4th Guards Brigade issues a disciplinary measure, who reviews that

15     disciplinary measure?

16        A.   If a battalion commander issues a disciplinary measure, it is

17     evaluated for irregular latter by the brigade commander.

18        Q.   [Previous translation continues] ... whose job it is to review

19     the disciplinary measure imposed?

20        A.   Correct.

21        Q.   [Previous translation continues] ... and it involves --

22             JUDGE ORIE:  I often see in the transcript "[Previous translation

23     continues] ..."

24             MR. MISETIC:  Sorry, Your Honour.

25             JUDGE ORIE:  So, therefore, we should take breaks.

Page 10938

 1             Could you re-start with your question which now appears on

 2     line 3, page 79.

 3             MR. MISETIC:  79?

 4             JUDGE ORIE:  It is where a question is put --

 5             MR. MISETIC:  Battalion commander, is that it?

 6             JUDGE ORIE:  I see an answer on page 79, line 1:  "If a battalion

 7     commander issues a disciplinary measure, it is evaluated for regularity

 8     by the brigade commander."  Then you put a new question to the witness.

 9             MR. MISETIC:  Yes, yes, yes, Your Honour.  I'll finish up in two

10     minutes, Your Honour.

11        Q.   Let me repeat that question:  The disciplinary publish issued by

12     the battalion commander, that would be reviewed for its regularity by

13     General Krsticevic.  Correct?

14        A.   Correct.

15        Q.   And if the soldier wanted to appeal, the soldier who was issued

16     the disciplinary measure by the battalion commander, wished to appeal, he

17     would appeal to General Krsticevic as well.  Is that correct?

18        A.   Yes.

19        Q.   And my last question for today:  Is this the way that the system

20     functioned all the way down the chain of command?  In other words, the

21     direct subordinate commander of the commander that issued the

22     disciplinary measure would be the one who would review the measure?

23        A.   Correct.

24        Q.   [Previous translation continues] ... last question:  At the level

25     of -- from General Krsticevic, acting in his capacity as the person

Page 10939

 1     reviewing a disciplinary measure, from that level below, is it true that

 2     the Split Military District Command would not receive any information

 3     about disciplinary measures imposed, except in the form of the statistics

 4     that you talked about earlier this morning?

 5        A.   That is correct.

 6        Q.   [Previous translation continues] ...

 7             MR. MISETIC:  [Previous translation continues] ... done for

 8     today, Your Honour.

 9             JUDGE ORIE:  Any matter remaining, Mr. Misetic.

10             MR. MISETIC:  Yes, Your Honour.  I'm told I may have misspoken,

11     if I could just have one second.  Sorry.

12             MS. GUSTAFSON:  I think it might be page 79, line 8.  It should

13     read:  "In other words, the direct superior commander..."

14             MR. MISETIC:  Yes, that is correct, and I thank counsel.

15             JUDGE ORIE:  Yes, Ms. Botteri, we'll adjourn for the day.

16             We'd like to see you back tomorrow morning at 9.00.  I again

17     instruct you that you should not speak with anyone about the testimony,

18     whether already given or still to be given.

19             We adjourn until tomorrow, Friday, 31st of October, 9.00 in the

20     morning, Courtroom I.

21                            --- Whereupon the hearing adjourned at 1.48 p.m.,

22                           to be reconvened on Friday, the 31st day of

23                           October, 2008, at 9.00 a.m.