Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17595

 1                           Friday, 3 April 2009

 2                           [Rule 98 bis]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.02 a.m.

 6             JUDGE ORIE:  Good morning to everyone in and around this

 7     courtroom.

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

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

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

11     Prosecutor versus Ante Gotovina et al.

12             JUDGE ORIE:  Thank you, Mr. Registrar.

13             On our agenda this mourning is the delivery of the decision under

14     Rule 98 bis, and there a few procedural matters not very important, but

15     with which I would like to deal with after I have read the decision.

16             The Chamber will now deliver its decision under Rule 98 bis.

17             The Chamber has heard oral submissions from the Defence and the

18     Prosecution on the 19th through the 25th of March, 2009.  And in reaching

19     its decision the Chamber has considered all of the parties submissions.

20             The Chamber will first give a brief summary of these submissions.

21             The Defence for all three accused requested a judgement of

22     acquittal on all counts of the indictment.  The Gotovina Defence

23     submitted that in relation to persecution under Count 1, there is no

24     evidence of an unlawful and discriminatory attack directed against the

25     Serb civilian population, including through Operation Storm.  It further

Page 17596

 1     submitted that Counts 1 through 3, must be dismissed because the

 2     Prosecution has not shown that the shelling that took place, whether

 3     unlawful or not, was in fact the cause of the flight of civilians.  The

 4     Gotovina Defence also submitted that Counts 4 through 9 must be dismissed

 5     because no evidence has been presented that Mr. Gotovina had the intent

 6     to commit crimes against humanity or war crimes through murder, inhumane

 7     acts, destruction or pillage of property or that he made a significant

 8     contribution to the commission of such crimes.  It added that there is no

 9     direct or circumstantial evidence to support the Prosecution's theory of

10     a joint criminal enterprise.

11             In relation to liability, pursuant to Article 7(3) of the

12     Statute, the Gotovina Defence argued that there is no evidence to support

13     the Prosecution's theory that Gotovina failed to take necessary and

14     reasonable measures to prevent or punish crimes committed by his

15     subordinates.  The Gotovina Defence further submitted that the Chamber

16     should not be barred from dismissing parts of a count, even where it

17     found that the count would otherwise stand.

18             The Cermak Defence asserted that Mr. Cermak had had no

19     operational function as a part of any Croatian military structures, nor

20     an operational role in relation to the civilian police, that he lacked

21     de facto effective control over any such structures and that the

22     Prosecution had presented no evidence to counter these assertions.

23             The Cermak Defence also asserted that Mr. Cermak's authority to

24     discipline members of the Croatian military was limited to his own

25     subordinates, of whom there were very few, and that there was no evidence

Page 17597

 1     that they had committed any crimes charged in the indictment.  The Cermak

 2     Defence therefore submitted that Mr. Cermak could not be held responsible

 3     under any theory of command responsibility.  The Cermak Defence further

 4     submitted that the evidence failed to demonstrate beyond a reasonable

 5     doubt the existence of a joint criminal enterprise and adopted the

 6     submissions of the Gotovina Defence in this respect; arguing that the

 7     evidence also allowed for a reasonable inference of acts of revenge by

 8     the civilian population, individual military personnel, and, perhaps,

 9     military personnel grouped together.  Based on these submissions, the

10     Cermak Defence argued that the evidence raised a reasonable doubt as to

11     whether there existed any joint criminal enterprise in which Mr. Cermak

12     had participated.

13             The Markac Defence argued, in relation to Count 1, that there is

14     no evidence that Mr. Markac held a discriminatory intent towards the Serb

15     civilian population based on their ethnicity.  In relation to Counts 2

16     and 3, it argued that there is no evidence to sustain the allegation that

17     the civilian population fled due to unlawful shelling or any other

18     unlawful acts carried out by the special police.  The Markac Defence

19     further submitted that there is no evidence that Mr. Markac participated

20     in a joint criminal enterprise with the objective of permanently removing

21     the Serb population from Krajina by launching large-scale indiscriminate

22     artillery attacks or by any other means.

23             Finally, the Markac Defence submitted that there is no evidence

24     that Mr. Markac had any ability to prevent, investigate, or prosecute

25     crimes.

Page 17598

 1             The Prosecution submitted that it had presented sufficient

 2     evidence for every count and every mode of liability alleged in the

 3     indictment.  The Prosecution stated, in particular, that the evidence

 4     showed that the Croatian leadership, including President Tudjman, wanted

 5     Serbs to leave Croatia and that it undertook a variety of steps to ensure

 6     that they did leave and that they would not return.  These steps included

 7     unlawful attacks and the creation of a hostile environment for any

 8     remaining Serbs in Krajina through, inter alia, widespread and systematic

 9     destruction of property, plunder, harassment, intimidation, and murder by

10     Croatian forces, including the special police.

11             The Prosecution submitted that each of the accused significantly

12     contributed to the achievement of the objective of the permanent removal

13     of Serbs from Krajina and that they shared this objective.  The

14     Prosecution also submitted that each of the three accused had effective

15     control over one or more of either the Croatian armed forces, the

16     civilian police, or the special police, operating in the indictment area

17     during the indictment period; that each accused knew about crimes

18     committed by members of the units; and that each failed to prevent these

19     members' criminal conduct, or to punish them for that conduct.

20             Rule 98 bis of the Tribunal's Rules of Procedure and Evidence

21     provides as follows.  I quote:

22             "At the close of the Prosecutor's case the Trial Chamber shall,

23     by oral decision and after hearing the oral submissions of the parties,

24     enter a judgement of acquittal on any count if there is no evidence

25     capable of supporting a conviction."

Page 17599

 1             Under the case law of the Tribunal, the Chamber must examine

 2     whether there is evidence upon which a reasonable trier of fact could be

 3     satisfied beyond a reasonable doubt of the guilt of the accused.  Thus,

 4     if a reasonable chamber could be satisfied beyond a reasonable doubt of

 5     the guilt of an accused on the basis of the evidence adduced to a count,

 6     then the count must stand.  There must be sufficient evidence for each

 7     element of an alleged crime and mode of liability.  The test would not be

 8     satisfied if there were no evidence or if no reasonable chamber could

 9     believe the evidence presented.  At this stage, the evidence should be

10     taken at its highest for the Prosecution.  The Chamber should not take

11     into consideration the credibility and liability of a witness, except if

12     no reasonable chamber could find him or her credible or reliable.

13             As for the applicable law, the Gotovina Defence claimed that the

14     amended Rule 98 bis cannot be operative due to Rule 6(D) of the Rules of

15     Procedure and Evidence, and the fact that the case against Mr. Gotovina

16     has been pending since his indictment was confirmed in 2001.  The Chamber

17     recalls that Rule 98 bis was amended in December 2004 and that the trial

18     against Mr. Gotovina started in March 2008.  Furthermore, Mr. Gotovina

19     was only apprehended in December 2005.

20             Rule 98 bis is a procedural rule and a corollary of the right of

21     an accused to be presumed innocent until proved guilty.  In domestic

22     legal systems there are varies procedural avenues which give effect to

23     this right, and they are not necessarily limited to the stage of the

24     conclusion of the Prosecution's case.  Limiting the scope of Rule 98 bis

25     decisions was intended to streamline the proceedings in the interests of

Page 17600

 1     judicial economy by changing the proceedings from a written to an oral

 2     one, and focussing on the counts rather than on the individual charges in

 3     an indictment.  The rules amendment, excluding acquittals on individual

 4     charges, does not prejudice the right to be presumed innocent until

 5     proved guilty.  Effect will ultimately be given to this right in the

 6     final written judgement.

 7             The Chamber further notes that the failure of the Prosecution to

 8     adduce evidence on individual charges has an effect on the proceedings

 9     that will, in any event, follow.  For the purpose of preparing and

10     presenting its evidence, the Defence will, in effect, be left with no

11     case to answer, in relation to those individual charges.

12             The Chamber will now provide a summary of the indictment.

13             The indictment against Ante Gotovina, Ivan Cermak, and

14     Mladen Markac covers nine counts of crimes allegedly committed from at

15     least July 1995 to 30 September 1995, in the following municipalities of

16     the Krajina area of Croatia:  Benkovac, Civljane, Donji Lapac, Drnis,

17     Ervenik, Gracac, Kistanje, Knin, Lisane, Ostrovicke, Lisicic, Nadvode,

18     Obrovac, Oklaj, and Orlic.

19             The indictment period includes Operation Storm, which allegedly

20     lasted from the 4th to the 7th of August, 1995, during which Croatian

21     forces took control of the southern part of Krajina.  According to the

22     indictment, at the time, Mr. Gotovina was the commander of the Split

23     Military District of the Croatian army and the overall operational

24     commander of Operation Storm.

25             Mr. Cermak was appointed commander of the Knin garrison on the

Page 17601

 1     5th of August, 1995, and remained in that position throughout the

 2     indictment period.

 3             Mr. Markac was the commander of the special police, members of

 4     which were involved in Operation Storm and in ensuing operations and

 5     actions.

 6             The first three counts of the document charge persecutions,

 7     deportation, and forcible transfer as crimes against humanity.  The

 8     fourth and fifth counts charge the war crimes of plunder and destruction

 9     of property.  Counts 6 and 7 charge murder as a crime against humanity

10     and as a war crime.  The two final counts charge the crime against

11     humanity of inhumane acts and the war crime of cruel treatment.

12             The indictment alleges that the accused and others participated

13     in a joint criminal enterprise aimed at permanent removal of Serbs from

14     Krajina by the commission of crimes, or, in the course of which it was

15     natural and foreseeable, that crimes would be committed.  The indictment

16     further charges the accused with otherwise committing, planning,

17     instigating, ordering, and/or aiding and abetting the crimes charged.

18     Finally, the indictment charges the accused with superior responsibility

19     for criminal acts and/or omissions of their subordinates by failure to

20     prevent the crimes or to punish the perpetrators thereof.

21             In its legal characterizations, the Chamber adopts and applies

22     the Tribunal's consistent case law with respect to the definition of

23     these elements of the crimes and modes of liability charged in this case.

24     In this decision, the Chamber will address the law more specifically

25     only, when, in view of the submissions of the parties, this is required

Page 17602

 1     to explain the Chamber's findings.

 2             The volume of evidence before the Chamber and the character of

 3     the Rule 98 bis proceedings do not allow for a comprehensive discussion

 4     of the evidence in this decision.  The Chamber did, however, consider the

 5     evidence in its entirety.  The specific evidence that the Chamber will

 6     refer to in this decision is merely a selection of what the Chamber

 7     considered.

 8             In relation to the crimes charged, the Chamber verified whether

 9     the evidence addressed all the elements of each of the crimes.

10     Similarly, the Chamber verified whether the evidence addressed all the

11     requirements for criminal responsibility as charged for each accused.

12     Finally, the Chamber verified whether the evidence, taken at its highest

13     for the Prosecution, could lead a reasonable trier of fact to conclude,

14     beyond a reasonable doubt, both that a crime has occurred, and that the

15     accused are criminally responsible for it.  All factual findings that

16     follow are made using the evidentiary standard for Rule 98 bis decisions

17     and do not prejudice any determinations to be made by the Chamber in its

18     final written judgement.

19             The Chamber will first examine the crime base, as alleged in

20     Counts 1 through 9, and determine whether there is sufficient evidence

21     with regard to each of the elements of the crimes to conclude that the

22     counts should stand.  The Chamber will next turn to the question of the

23     individual criminal responsibility of the three accused.

24             The Chamber initially turns to general elements and

25     jurisdictional requirements that have to be proven under Articles 3 and 5

Page 17603

 1     of the Statute of the Tribunal.  There is evidence of a major military

 2     operation in Krajina.  Operation Storm, starting around 5.00 in the

 3     morning of the 4th of August, 1995, and involving combat between Croatian

 4     forces and forces of the army of the Republic of Serb Krajina.  The case

 5     law of the Tribunal sets out that an armed conflict exists, and I quote:

 6             "Until a general conclusion of peace is reached; or, in the case

 7     of internal conflicts, a peaceful settlement is achieved."

 8             Noting the absence of evidence with respect to reaching any

 9     general conclusion of peace or achieving any peaceful settlement during

10     the indictment period, the Chamber concludes that there is sufficient

11     evidence to establish that an armed conflict commenced no later than at

12     5.00 a.m. on the 4th of August, 1995, and that it continued throughout

13     the indictment period and extended throughout the geographic area covered

14     by the indictment.

15             With regard to the element of a widespread or systematic attack

16     against a civilian population, the Gotovina Defence focussed, in its

17     submissions, on the artillery attacks during Operation Storm.  However,

18     the indictment adopts a broader approach to this issue, setting out that

19     all crimes charged occurred as part of a widespread or systematic attack

20     against the Serb civilian population of the southern Krajina.  The

21     Chamber has received evidence of numerous incidents of persons taking

22     possession from, and burning, houses in many villages during this period.

23     Philip Berikoff, for example, travelled extensively through Krajina

24     following Operation Storm and until the beginning of September 1995.  He

25     testified to having observed numerous burnt or burning houses, dead live

Page 17604

 1     stock, and burning fields in the area.  He also testified to having

 2     observed groups of Croatian soldiers going from house to house in varies

 3     villages, taking items and livestock which they loaded onto trucks, after

 4     which the houses burst into flames.  According to Berikoff, he observed

 5     on several indications, police directing traffic around these trucks and

 6     making markings on clipboards.  His testimony indicates how visible the

 7     burning of houses and fields was from the roads on which he travelled.

 8     The following witnesses also testified about looting by members of the

 9     Croatian forces:  Lennart Widen, about looting in Knin on the 6th of

10     August, 1995; Herman Steenbergen, about looting in Gracac on the 6th of

11     August, 1995, and during the subsequent weeks; Kari Anttila, about

12     looting in Palanka, in Gracac municipality on the 18th of August, 1995;

13     Witness 69, about looting in Zagrovic in Knin municipality around

14     11 August 1995; and Petar Colovic, about looting in Colovici in Orlic

15     municipality a few days after the 5th of August, 1995.

16             In examining the general elements of crimes against humanity, the

17     Chamber also considered incidents of deportation, forcible transfer,

18     murder, inhumane treatment, destruction, and plunder.  Evidence relating

19     to these crimes will be addressed shortly, when discussing each count of

20     the indictment.

21             The mentioned examples, as well as other evidence considered by

22     the Chamber, indicate that the targets of the crimes were not merely a

23     limited and randomly selected number of individuals.  Rather, an

24     examination of the number of incidents, the nature of those incidents, as

25     well as the age and ethnicity of the persons subjected to crimes,

Page 17605

 1     provides a sufficient basis for establishing that there was an attack and

 2     that it was directed against the Serb civilian population of the southern

 3     portion of Krajina.

 4             The Chamber concludes that the evidence is sufficient to

 5     establish at this stage of the proceedings both that there was a

 6     widespread attack against the Serb civilian population of the southern

 7     portion of Krajina; and that the perpetrators must have known that their

 8     acts were part of that attack.

 9             The Chamber will now turn to examine the individual counts of the

10     indictment.

11             There is evidence of murder taking place during the indictment

12     period and within the indictment area.  For instance, Mile Djuric

13     testified that on the 6th of August, 1995, in Plavno village in Knin

14     municipality, soldiers detained and then threw his disabled father,

15     Sava Djuric, into a burning workshop and locked the door.  The Chamber

16     received in evidence a death certificate for Sava Djuric.

17             Additionally, the Chamber received evidence from Vesela Damjanic

18     about the murder of her husband Lazo Damjanic on the 6th of August in

19     Vrbnik in Orlic municipality.  Vesela Damjanic stated that soldiers

20     approached her house on that day and took her husband away.  She heard

21     the soldiers threaten her husband, and a short while later the witness

22     heard shooting coming from the direction of where her husband had been

23     taken.  Lazo Damjanic did not return home, and on the 8th of August, the

24     same two soldiers who had taken her husband away passed by her house and

25     told Vesela Damjanic that she would not see her husband alive again.

Page 17606

 1     Relatives of the witness left the house to search for the body of

 2     Lazo Damjanic and informed the witness when they returned that they had

 3     found it.

 4             The Chamber also heard evidence about murders in Grubori hamlet

 5     in Plavno village in Knin municipality on the 25th of August, 1995.

 6     Jovan Grubor testified that on the morning of that day he saw three

 7     groups of soldiers in camouflage uniform walking on the asphalt road in

 8     the direction of Grubori and that later, when he arrived Grubori many

 9     houses were burning.  He also testified that he saw the body of

10     Jovo Grubor whose throat had been slit and whose body had been repeatedly

11     stabbed.  He further testified that he observed the bodies of

12     Milica Grubor, Djuro Karanovic, and Milos Grubor, and in addition there

13     are testimonies as well as there is documentary evidence indicating that

14     these incidents were carried out by the Lucko Unit of the creation

15     special police during a mopping up operation, in follow-up to the

16     Operation Storm.  In this respect, the Chamber refers in particular to

17     the testimonies of Josip Celic, Zdravko Janic, and Josip Turkalj.

18             This evidence addresses all the elements of murder as well as the

19     requirements that the victims were not actively participating in

20     hostilities at the time the offences were committed and that the murders

21     were closely related to the armed conflict.  The Chamber concludes that

22     there is sufficient evidence of murder for Counts 6 and 7 to stand.  As

23     mentioned, the Chamber will later turn to the question of whether any or

24     all of the accused are individually criminally responsible for the crime

25     of murder.

Page 17607

 1             There is evidence of the commission of inhumane acts and cruel

 2     treatment in the wake of Operation Storm.  For instance, Bogdan Brkic

 3     stated that, sometime between Operation Storm and the 12th of August,

 4     1995 armed and uniformed Croatian soldiers tied him to a tree in Palanka

 5     in Gracac municipality.  They then placed a suit under his feet and set

 6     it on fire.  In pain, he managed to kick it away.  The soldiers also told

 7     him that they had killed his neighbour.

 8             Another example came from Draginja Urukalo, a woman aged 73 at

 9     the time, who stated that Croatian soldiers came to her village one day

10     early in August 1995.  After smashing some of her belongings, shooting at

11     her house, and calling her a "Chetnik whore," the soldiers forced her to

12     strip to her underwear and play basketball with her elderly neighbour.

13     The Chamber also received evidence from Vesela Damjanic who testified

14     that around the 16th of August, 1995, she saw three soldiers shouting at

15     Djurdija Amanovic an elderly lady with mobility problems.  The soldiers

16     were also arguing about whether they should set her on fire.  After the

17     soldiers had left, Djurdija Amanovic told Vesela Damjanic that the

18     soldiers had indeed tried to burn her and had accused her sons of being

19     Chetniks.

20             This evidence addresses all the elements of inhumane acts and

21     cruel treatment as well as the requirements that the victims were not

22     actively participating in hostilities at the time the offences were

23     committed and that these acts were closely related to the armed conflict.

24     The Chamber concludes that there is sufficient evidence of inhumane acts

25     and cruel treatment for Counts 8 and 9 to stand.

Page 17608

 1             There is evidence of plunder occurring during the indictment

 2     period and in the indictment area.  The Chamber has already referred to

 3     some of this evidence earlier in its discussion of the general elements

 4     of crimes against humanity.  For instance, Lennart Widen testified that

 5     in Knin, on the 6th of August, 1995, he observed many ransacked shops an

 6     apartments, soldiers of the creation Puma Brigade and civilian police

 7     carrying items, such as television sets, video recorders, and furniture,

 8     as well as military vehicles loaded with similar items departing from

 9     Knin.  The evidence addresses all the elements of plunder as well as the

10     requirements that the plunder had grave consequences for the victims and

11     that it was closely related to the armed conflict.  The Chamber concludes

12     that there is sufficient evidence of plunder for Count 4 to stand.

13             The Chamber has also received evidence of large-scale destruction

14     of houses or entire villages within the indictment period and area.  For

15     instance, several witnesses testified that on the 25th of August, 1995,

16     numerous houses were set on fire and livestock killed in the hamlet of

17     Grubori in Plavno village, in Knin municipality.  The Chamber has also

18     received video evidence, for example, P874, illustrating the destruction

19     in the hamlet.  As indicated earlier, there are witness testimonies as

20     well as documentary evidence indicating that these actions were carried

21     out by the Lucko Unit of the Croatian special police.

22             A number of witnesses working for international organisations

23     also testified about large-scale destruction of property that they had

24     observed throughout the indictment area.  For example Laila Malm,

25     Philip Berikoff, and Alun Roberts testified about the extensive burning

Page 17609

 1     of houses in various villages in Kistanje municipality.  The evidence

 2     indicates that at least some of these acts were carried out by Croatian

 3     soldiers.  P707 and P709 contain pictures of the destruction in Knin,

 4     Kistanje, and Gracac.

 5             P754, P756, and P757 are videos showing the large-scale

 6     destruction of Kistanje and other villages in the area.

 7             Another example is the UNTV video footage in evidence under P26.

 8     Normand Boucher testified that he saw soldiers taking out jerrycans from

 9     a truck and taking them towards houses in the villages of Kosovo on the

10     Knin-Drnis road.  When Boucher returned some hours later, the houses and

11     the adjacent crops were on fire.

12             The evidence addresses all the elements of the war crime of

13     wanton destruction and the requirement that these actions were closely

14     related to the armed conflict.  The Chamber concludes that there is

15     sufficient evidence of destruction for Count 5 to stand.

16             There is evidence of deportation and forceable transfer of Serbs

17     out of the Krajina in the indictment period.  For instance,

18     Marija Vecerina, a Serb woman, testified to a series of events which

19     began on the 5th of August, 1995, and which eventually led her and some

20     of her family members to leave Krajina for Serbia on the 16th of

21     September, 1995.  These circumstances included their being detained at

22     various locations in Knin and Zadar from the 6th of August to the 16th of

23     September, 1995, and their being subjected to other forms of coercive and

24     intimidating treatment by Croatian soldiers and by Croatian civilian

25     police.

Page 17610

 1             Mira Grubor testified that on the 5th of August, 1995, when

 2     Croatian forces entered town, she fled to the UN compound in Knin and

 3     that she remained there until the 16th of September, 1995, when she and

 4     others were transported in buses to Serbia.  Before they could board the

 5     buses and leave the compound, however, people, Mira Grubor thought of as

 6     responsible to the Croatian authorities required them to sign a document

 7     stating that they had been treated in a humane way and that they

 8     voluntarily wished to move from Croatia to Serbia.

 9             Another Serb woman, Witness 3, testified about her experiences

10     which were similar to those of Mira Grubor.  She stated that she stayed

11     at the UN compound in Knin for 40 days, starting on the 6th of August,

12     and that a few days before the 16th of September, 1995, unknown persons

13     told her that she had to sign a form stating that she was leaving Croatia

14     voluntarily in order to be allowed to leave the UN compound.  She signed

15     the form to be allowed to leave the camp, but testified that she was not

16     leaving Croatia voluntarily.  The Chamber received such forms into

17     evidence under P55 and P57.  Witness 3 left the UN compound in a convoy

18     of buses in the early morning hours of the 16th of September 1995 and

19     arrived in the Federal Republic of Yugoslavia the day after.

20             Other witnesses, including Mirko Ognjenovic, also testified about

21     leaving Croatia from the UN compound in the convoy of buses in

22     mid-September 1995.

23             A report of the United Nations Secretary-General of the 23rd of

24     August, 1995, in evidence as D90, states that theres with a mass exodus

25     of the Krajina Serb population which create a humanitarian crisis with

Page 17611

 1     only 3.500 Serbs remaining in the former Sector North, and 2.000 Serbs

 2     remaining in the former Sector South, representing only a small

 3     percentage of the former Krajina Serb population.

 4             The evidence addresses all the elements of the crimes against

 5     humanity of deportation and inhumane acts consisting of forcible

 6     transfer.  The Chamber concludes that there is sufficient evidence of

 7     these crimes for Counts 2 and 3 to stand.

 8             The previously discussed crimes also constitute some of the

 9     underlying acts of the crime of persecution alleged in Count 1 of the

10     indictment.  There is evidence indicating that some of these acts were

11     carried out as part of the crime of persecution against Krajina Serbs.

12     For instance, Smiljana Mirkovic stated that on the 12th of August, 1995,

13     in Polaca in Knin municipality, a soldier shot and killed

14     Djurdija Mirkovic while cursing their Serbian mothers.  Similar

15     discriminatory statements were made by the perpetrators of other crimes

16     on which the Chamber has received evidence.  Petar Colovic stated that

17     Croatian soldiers entered his village in Orlic municipality a few days

18     after the 5th of August, 1995.  The soldiers took personal belongs and

19     livestock from the witness, and one of the soldiers also cursed the

20     witness's mother and called her a Chetnik.  Mira Grubor testified that

21     while she was in the UN compound between the of 5th August and the

22     16th of September, 1995, she heard Croatian soldiers outside screaming

23     things like "come out Chetnik bitches" and other similar pejorative

24     statements.

25             With regard to destruction of property and looting, the Chamber

Page 17612

 1     notes the evidence it received from Philip Berikoff, Peter Marti,

 2     Stig Marker Hansen, and through documents such as UNCIVPOL memo in

 3     evidence under P228, indicating that houses in Knin and elsewhere were

 4     marked as Croatian.  There is evidence to the effect that the aim of this

 5     was to save these houses, unlike the non-Croat houses, from destruction

 6     or looting, although this was not always successful.

 7             The evidence addresses all of the elements of the crimes against

 8     humanity of persecution.  The Chamber concludes that there is sufficient

 9     evidence of persecution for Count 1 to stand.

10             Although the Gotovina Defence considered that Count 1 should be

11     dismissed in its entirety, it also invited the Chamber, in the

12     alternative, to dismiss Count 1 in part, namely with regard to the

13     underlying act of unlawful attacks on civilians and civilian objects.  As

14     mentioned earlier, Rule 98 bis, as amended in December 2004 provides for

15     a review of the evidence on a count-by-count basis and not with regard to

16     specific charges of the.  Since the Chamber considers that the evidence

17     presented is sufficient for at least some of the underlying acts of

18     persecution, Count 1 will stand in its entirety.

19             The Chamber does not accept the Gotovina Defence's suggested

20     approaches to dismissing counts in part.

21             Having found a sufficient evidentiary basis, under the

22     aforementioned Rule 98 bis standard of review of evidence, for the crimes

23     charged in each and all counts of indictment, the Chamber now turns to

24     the responsibility of the accused for those crimes.

25             The Chamber will first examine the evidence with regard to the

Page 17613

 1     mode of liability of participation in a joint criminal enterprise.  As

 2     set out in the case law of the Tribunal, the elements of this mode of

 3     liability are:  A plurality of persons; a common objective which amounts

 4     to or involves the commission of a crime provided for in the Statute; and

 5     the participation of the accused in the objective's implementation.  The

 6     contribution of an accused need not have been substantial or necessary to

 7     the achievement of the common objective.  However, it should at least be

 8     a significant contribution to the crimes forming part of the common

 9     objective.

10             The mens rea required is that the participants in the joint

11     criminal enterprise, including the accused, had a common state of mind,

12     namely, the state of mind that the statutory crimes - I should say crime

13     or crimes - through which the common objective were to be achieved,

14     should be carried out.  This is what in the case law is referred to as

15     the first form of joint criminal enterprise, and the Prosecution has

16     charged all three accused with this mode of liability with regard to

17     Counts 1 through 5 of the indictment.  The Prosecution has also charged

18     the accused, in addition or in the alternative, with the third form of

19     joint criminal enterprise.  The mens rea required with respect to this

20     charge is that the resulting crime or crimes were a natural and

21     foreseeable consequence of the execution of the joint criminal

22     enterprise, and that the accused was aware of this and participated with

23     that awareness.

24             There is evidence of a joint criminal enterprise between the

25     accused, with the objective of the permanent removal of Serbs from

Page 17614

 1     Krajina.

 2             When examining the first two elements of this mode of liability,

 3     the Chamber considered evidence addressing the alleged participants in

 4     the joint criminal enterprise agreeing, conspiring, discussing, or

 5     otherwise manifesting the existence of a common objective, which amounts

 6     to or involves the commission of crimes provided for in the Statute.  The

 7     Chamber also examined the evidence on the commission of such crimes in

 8     the indictment area and during the indictment period.  The Chamber

 9     finally considered whether this evidence allows, on its own or together

10     with the other evidence, for an inference as to the existence of a common

11     objective.

12             The Chamber received into evidence the audio-recording and

13     minutes of a meeting held between President Tudjman, Mr. Gotovina,

14     Mr. Markac, and others at Brioni on the 31st of July, 1995.  In this

15     respect, the Chamber considered Exhibit P461 and the submissions made by

16     the Gotovina Defence on the 1st of April, 2009, with regard to the

17     transcription and translation of the recordings of this meeting.

18             During the meeting, the participants discussed, among other

19     things, that civilians would be leaving the area in connection with the

20     armed operation.  President Tudjman stated, for example, that:

21             "It is important that those civilians set out, and then the army

22     will follow them, and when the column sets out, they will have a

23     psychological impact on each other."

24             And Mr. Gotovina then responded:

25             "A large number of civilians are already evacuating Knin and

Page 17615

 1     heading towards Banja Luka and Belgrade.  That means that if we continue

 2     this pressure, probably for some time to come, there won't be so many

 3     civilians, just those who have to stay, who have no possibility of

 4     leaving."

 5             The participants further discussed the possible routes that

 6     should be left open for the civilians to leave Croatia.  It was also

 7     agreed at the meeting that information should be spread amongst the Serb

 8     civilian population that Serb civilians were already leaving the area.

 9     In proposing a text for a leaflet or a radio or television message,

10     President Tudjman stated:

11             "Serbs, you are already withdrawing, and so forth, and we are

12     appealing to you not to withdraw.  We guarantee ... this means giving

13     them a way out."

14             This literally quote was followed by words strongly implying that

15     civil rights would ostensibly be guaranteed.

16             The Chamber has also heard witness's testimonies with regard to

17     the objective of the permanent removal of Serbs from Krajina.

18     Peter Galbraith testified that President Tudjman had informed him after

19     Krajina Serbs had left Croatia in August 1995 that those Serbs who had

20     left could not return to Croatia.  Galbraith also testified about the

21     laws on confiscation of property which required those who had left

22     Croatia to return within a short period of time or risk losing their

23     property.  Galbraith further testified that although this time-limit was

24     eventually abandoned, this was only after intense international pressure

25     on Croatia.  From his contacts with President Tudjman, and others in the

Page 17616

 1     Croatian political leadership, Galbraith formed the opinion that the

 2     mentioned laws as well as other measures, including systematic looting

 3     and burning of Serb homes, were all aimed at preventing those Serbs who

 4     had left from ever returning.

 5             The Chamber has already made findings on the various counts in

 6     the indictment under the Rule 98 bis standard of review.  As described,

 7     there is evidence showing that many crimes were committed throughout the

 8     indictment period by Croatian soldiers or special police on the ground in

 9     Krajina.  In particular, the Chamber found that the evidence is

10     sufficient to conclude that there was a widespread attack against the

11     Serb civilian population of the southern portion of Krajina.

12             The Chamber concludes that, for the purposes of a review of the

13     evidence, pursuant to Rule 98 bis of the Rules, there is sufficient

14     evidence of the existence of a common objective aimed at the permanent

15     removal of Serbs from Krajina by force or threat of force, persecution,

16     forced transfer, and deportation, as well as appropriation and

17     destruction of property as charged in Counts 1 through 5 of the

18     indictment.  The Chamber further concludes that there is sufficient

19     evidence that the crimes charged in the Counts 6 through 9 were natural

20     and foreseeable consequences of the execution of this common objective.

21             The Chamber will next turn to the third element of joint criminal

22     enterprise; namely, the participation of the accused in the objective's

23     implementation.

24             Both Mr. Gotovina and Mr. Markac participated in the

25     aforementioned Brioni meeting during which participants discussed how

Page 17617

 1     civilians would leave Krajina.  There is also evidence indicating that

 2     Mr. Gotovina was in command and control of Croatian forces within the

 3     Split Military District and that Mr. Markac was in command of special

 4     police operations in Sector South during and after Operation Storm.

 5             As indicated earlier, there is evidence that at least some of the

 6     crimes under each of the Counts 1 through 5 of the indictment were

 7     committed by Croatian forces, including the special police.  The Chamber

 8     also received further evidence placing Mr. Gotovina, Mr. Markac on the

 9     ground in Krajina and being involved in military or special police

10     operations during the indictment period.  In this respect, there is both

11     documentary evidence and testimony implicating Mr. Markac in activities

12     attempting to obscure crimes committed by the Lucko Unit of the special

13     police in Grubori on the 25th of August, 1995.  The Chamber refers in

14     particular to the testimonies of Zdravko Janic and Josip Celic.

15             The Chamber has also received evidence of Mr. Gotovina's

16     awareness of crimes committed by men under his command during and

17     following Operation Storm.  For example, in a letter to Mr. Gotovina on

18     the 5th of August, 1995, Alain Forand expressed concerns about

19     significant looting and destruction occurring in Knin.  This letter is in

20     evidence under P347.

21             On the 12th of August, 1995, HV assistant commander for political

22     affairs, Captain Mario Tomasovic, addressed a notification entitled

23     "Warning" to, amongst others, Mr. Gotovina.  It noted that the success of

24     Operation Storm had been partly brought into question by the

25     inappropriate acts of individual Croatian soldiers and stressed the need

Page 17618

 1     to prevent the continued destruction and looting of property, killing of

 2     livestock, and inappropriate conduct towards civilians and prisoners of

 3     war.  This notification is in evidence as P918.

 4             In a letter dated the 13th of September, 1995, and in evidence as

 5     Exhibit P407, Mr. Gotovina wrote to General Cervenko, noting that

 6     Alun Roberts had stated that:

 7             "The Croatian army is burning, looting, and violating human

 8     rights."

 9             Mr. Gotovina further indicated that he did not believe that this

10     conduct or that of his men conflicted with Croatian state policy.

11             The evidence heard allows for the conclusion that Mr. Gotovina

12     had the power and ability to discipline soldiers under his command.

13     However, the Chamber heard evidence from expert witness Reynaud Theunens

14     that Mr. Gotovina primarily used his powers to discipline men for

15     violations or crimes that would jeopardize the accomplishment of specific

16     combat tasks and combat operations, rather than for crimes against the

17     civilian population such as looting and burning.

18             The Chamber concludes that there is sufficient evidence to

19     establish the participation of Mr. Gotovina and Mr. Markac in the joint

20     criminal enterprise as described, and that their participation amounted

21     to a significant contribution to crimes charged in Counts 1 through 5.

22     The Chamber further concludes that the aforementioned evidence is

23     sufficient to establish both that Mr. Gotovina and Mr. Markac intended

24     the commission of these crimes and that they knowingly took the risk that

25     the other crimes charged in the indictment would be committed as a

Page 17619

 1     natural and foreseeable consequence of the implementation of the

 2     objective of the joint criminal enterprise.

 3             Regard to Mr. Cermak, there is evidence that on the 5th of

 4     August, 1995, President Tudjman personally appointed him commander of the

 5     Knin garrison, with the stated tasks of restoring normal life in and

 6     around Knin and dealing with the media and representatives of the

 7     international community.  Mr. Markac remained in his position throughout

 8     the indictment period.  Witness 86 and Stjepan Buhin testified that

 9     Mr. Cermak chaired meetings held almost daily at his office in Knin, in

10     which representatives from various civilian and military structures,

11     including the civilian police, participated.  During these meetings,

12     Mr. Cermak was informed, among other things, about crimes occurring in

13     and around Knin.

14             There is evidence of cooperation between Mr. Cermak and the other

15     two accused; for instance, with regard to freedom of movement and special

16     police mopping up operations.  Mr. Cermak issued documents allowing or

17     denying free movement of civilians or members of international

18     organisations.  His work also included administering a sanitary team

19     disposing of dead bodies and livestock.

20             There is evidence that Mr. Cermak, at times, either denied that

21     members of Croatian forces had committed crimes, attempted to downplay

22     these crimes, or promised that investigations would take place, but such

23     investigations either were not carried out or were not conducted until

24     much later.  After the killings carried out this Grubori on 25th of

25     August, 1995, there is evidence indicating that Mr. Cermak knew that

Page 17620

 1     civilians had been killed and that houses in the hamlet had been burned

 2     down by members of the special police.  For example, on the 26th of

 3     August, Richard Lyntton interviewed Mr. Cermak and informed him about the

 4     killing of two elderly men in the hamlet.  Mr. Cermak also visited

 5     Grubori himself around the same time, and observed the destruction of

 6     houses.  Nevertheless, through various communications during the

 7     subsequent days, including those in evidence as P603 and P1222,

 8     Mr. Cermak relayed to members of international organisations the version

 9     of events given to him by the special police, despite evidence indicating

10     that he knew that this version was not reliable.

11             The Chamber also received evidence of Mr. Cermak's personal

12     involvement in securing the departure of hundreds of Serb civilians from

13     the UN compound in Knin on busses to Serbia.  The Chamber earlier

14     referred to Witness 3 and Mira Grubor who each in various ways had been

15     forced to leave their homes and subsequently came to the UN compound.

16     The Chamber received from Alain Forand and other witnesses evidence

17     according to which Mr. Cermak had a central role in the negotiations

18     between Croatia and the United Nations regarding the fate of the Serb

19     displaced persons at the UN compound.  Moreover, the Chamber received

20     documentary evidence, under Exhibit D316, that portrayed Mr. Cermak as

21     one of the key persons responsible for the operation to move to Serbia

22     the Serb displaced civilians in a convoy of 35 buses on the 16th and

23     17th of September, 1995.

24             Taking the evidence at its highest for the Prosecution, the

25     Chamber concludes that there is sufficient evidence to establish the

Page 17621

 1     participation of Mr. Cermak in the joint criminal enterprise, alongside

 2     the two other accused, and that his participation amounted to a

 3     significant contribution to the crimes charged in Counts 1 through 5.

 4     The Chamber further concludes that the evidence is sufficient to show

 5     that Mr. Cermak intended the commission of these crimes, and knowingly

 6     took the risk that the other crimes charged in the indictment would be

 7     committed as a natural and foreseeable consequence of the implementation

 8     of the objective of the joint criminal enterprise.

 9             Having thus found, under the Rule 98 bis standard of review,

10     sufficient evidence to sustain all counts of the indictment for each of

11     the accused under one mode of liability, the Chamber does not, at

12     present, need to examine the other modes of liability alleged in the

13     indictment.

14             In conclusion, all three accused have a case to answer on all

15     nine counts of the indictment.

16             I continue with a related, although a bit separate issue.

17             On the 23rd of March, 2009, the Prosecution referred to a list of

18     32 specific murder victims mentioned in the indictment, as well as the

19     original and further clarification.  The Prosecution conceded that for

20     these victims it had not presented any evidence of murder.  This can be

21     found at transcript page 17.415.  And on the 27th of March, the

22     Prosecution filed this list.

23             I am now addressing the Defence.  The crimes for which -- I would

24     say especially the Gotovina Defence, argued that no evidence had been

25     presented was far longer than 32 names or persons identified.  The

Page 17622

 1     Chamber notes that five out of the list of 32 of the Prosecution's list

 2     do not appear in the, by far, longer list of the Defence.  The Chamber

 3     wonders whether the Defence disagrees on those specific five, that no

 4     evidence has been presented, or whether it agrees with the Prosecution

 5     that no evidence has been presented.  And I just give these five, the

 6     first one being scheduled killing 83, Saric Danica, that's number 1 on

 7     the Prosecution list.  Number 26 on the Prosecution's list, killing

 8     number 234, Supeljak Mirko.  Number 27 on the Prosecutor's list, killing

 9     number 239, Pribojan Darinka.  Number 28 on the Prosecution's list,

10     killing number 243, Miljevic Ilija.  And number 29 on the Prosecutor's

11     list, killing number 270, Simic Milica.

12             The Chamber would like to establish whether or not the Defence

13     would agree on no evidence having been presented, in relation to these

14     five cases, because the Prosecution states that no evidence was presented

15     but the Defence has not listed these five persons as cases where no

16     evidence was presented.

17             MR. MISETIC:  Mr. President, I would -- in all honesty have to

18     look at our records on it, but can I tell you right now that if the

19     Prosecution believes it hasn't proven a charge, I'm not going to dispute

20     it.  So -- we will certainly go back and look at it ourselves.  Obviously

21     I don't think that our list was intended to be exhaustive when we recited

22     it at the 98 bis hearing, and therefore it is certainly possible that

23     there are more names than the ones we listed.  But those were the names

24     in light of the amount of time to prepare on the variety of issues we

25     were addressing that we came up with at that time.

Page 17623

 1             JUDGE ORIE:  Could I hear from the other Defence teams.  What

 2     their position is.

 3             MR. CAYLEY:  I can't add anything to what Mr. Misetic has said,

 4     Your Honour.  Thank you.

 5             JUDGE ORIE:  Mr. Kuzmanovic.

 6             MR. KUZMANOVIC:  Same position, Your Honour.  Thank you.

 7             JUDGE ORIE:  That means that, although still subject to

 8     verification, that there seems to be, in principle, agreement among the

 9     parties, and the Chamber takes note of that.  That no evidence of murder

10     has been presented with regard to all of the 32 victims mentioned in the

11     Prosecution's notification of the 27th of March.

12             And, Mr. Misetic, I asked only about the five, but I took it from

13     your submissions under 98 bis that the remaining 27, that there was

14     agreement already on those.

15             If the verification would lead the Prosecution -- the Defence

16     teams to any other conclusion, the Chamber would like to be informed so

17     as to be able to correct what is now noted and put on the record as an

18     agreement among the parties, in relation to the 32 victims.

19             This concludes the Chamber decisions and the related issue, under

20     Rule 98 bis.

21             As I said before, I have a few matters.

22             The first we can deal with in open session.  It is a notification

23     of the lifting of confidentiality of the Prosecution's motion seeking the

24     production of documents obtained by the Gotovina Defence and the fact

25     that it has been denied in a confidential decision.  I read it in its

Page 17624

 1     entirety.

 2             The Chamber informs the public that on the 22nd of January, 2009,

 3     the Prosecution filed a confidential motion in which it requested the

 4     Chamber, pursuant to Rule 54 of the Tribunal's Rules of Procedure and

 5     Evidence, to order the Gotovina Defence to produce any documents in its

 6     possession obtained from sources other than the Prosecution, that fall

 7     within the Prosecution's Artillery Document Request made to Croatia.  In

 8     a confidential decision to be filed this afternoon, or later this

 9     morning, the Chamber denied that motion and also lifted the confidential

10     status of the motion and its Appendix C.  Appendices A and B to the

11     motion and the Chamber's decision are to remain confidential, in order to

12     avoid any risk of inference with pending Rule 54 bis matters in this

13     case.

14             And this concludes the statement of the Chamber in this respect.

15             The next -- for the next item I would like to go into private

16     session.

17                           [Private session]

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 17625











11  Pages 17625-17626 redacted. Private session.















Page 17627

 1                           [Open session]

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

 3             JUDGE ORIE:  Thank you, Mr. Registrar.

 4             The last item on my agenda is that the Gotovina Defence asked to

 5     make further submissions on the issue of the lifting of restriction on

 6     communication in relation to a witness which may be re-called.  And I --

 7     of course, I do not know exactly what are you going to say.  I think

 8     until now, it was -- I don't think that there is anything confidential in

 9     the issue itself.

10             MR. MISETIC:  We discussed that in public session on the 6th of

11     March, if I'm not mistaken.

12             JUDGE ORIE:  Yes.

13             Mr. Tieger, I see you're not jumping, but you're raising your

14     eyebrows, which is also up for direction.

15             MR. TIEGER:  Well, thank you, Your Honour, for attending to our

16     possible concerns.

17             Just wondering about the extent to which submissions related to

18     an issue of contact can -- or communication can take the inadvertent form

19     of communication.  And since I don't know what the submissions might be,

20     it raises that potential concern.

21             JUDGE ORIE:  Yes.  That's what I said earlier when I said I don't

22     know what the content of Mr. Misetic's observations will be.  But I think

23     he gave it some thought and considers that where the matter was raised

24     publicly earlier, that he certainly has thought about whether his

25     submissions would create any need to change the status of this

Page 17628

 1     discussion.

 2             Mr. Misetic.

 3             MR. MISETIC:  If I could just have one moment, Mr. President.

 4             Just as a matter of the status, it's my recollection that not

 5     only did we discuss it in public, but the Chamber's filing on Friday

 6     filing the e-mails was done publicly, and if I'm not mistaken, the

 7     Prosecution filed their submission publicly, so I don't see why our reply

 8     would suddenly have to be confidential.

 9             JUDGE ORIE:  Not knowing what you're going to say, of course,

10     Mr. Tieger says that if you talk about non-communication, then

11     submissions in itself could be a form of communication.  But you are

12     aware of that, and that I take it that you have sufficiently considered

13     that, so you may proceed.

14             MR. MISETIC:  Thank you, Mr. President.

15             Briefly there were two main issues that I wanted to address in

16     the Prosecution's response.  First of all, the reason that --

17             THE INTERPRETER:  Please slow down, please.

18             MR. MISETIC:  The reason that we need to conduct this witness,

19     obviously, he is an important witness with respect to artillery issues in

20     this case.  Information continues to come in at a pretty significant

21     clip.  We have to prepare witnesses not the least of which are expert

22     witnesses on artillery issues, and we are hindered by an inability to

23     contact an important witness about a wide variety of issues including to

24     check additional information that was disclosed to us last week by an

25     order of the Chamber.

Page 17629

 1             We had no objection initially to the non-contact because it was

 2     our assumption that if he were recalled, it would be recalled while

 3     Prosecution's case was still open.  That obviously hasn't happened, and

 4     we've now completed the 98 bis stage.  We at this point have no

 5     instruction from the Chamber as to whether there is any intent, and if

 6     so, when to call him back, and so we're hampered in our preparations, and

 7     I can use an example.  Mr. Theunens testified here.  I'm -- I feel

 8     reasonably confident that once he finished testifying, the Prosecution

 9     didn't stop communicating with him.  As a matter of fact, I'm pretty sure

10     they now -- I would suggest regularly contact him regarding issues in

11     this case.  Similarly the fact that Mr. Rajcic completed testimony does

12     not change the fact that he is still a valuable source of information for

13     the Defence in preparing its case whether he ultimately comes to testify

14     or not.

15             With respect to why we sent an e-mail, my understanding of the

16     procedural history of this is the Prosecution did not file a formal

17     motion but sent a request to the Chamber in the form of an e-mail.  The

18     Chamber responded with an instruction in the form of an e-mail, and

19     therefore we also sent an e-mail.  The fact that they had an opportunity

20     the next day because we happened to be sitting in court to raise the

21     issue is in our view certainly fine, I have no objection to it, but at

22     the time we sent our request, we of course did not have court the next

23     day, but we could raise the matter earlier with the Chamber.  And in

24     light of the timing issues, we also, frankly, fell that we can't afford

25     14 days response plus reply because the time for us to prepare our

Page 17630

 1     Defence is running.

 2             Thank you, Mr. President.

 3             JUDGE ORIE:  Yes.  As far as e-mail communications are concerned,

 4     there certainly was an urgency in the matter, that is also a reason why

 5     the Chamber has chosen to respond by e-mail.  At the same time, by

 6     putting all these e-mails on the record, the Chamber did stick to its

 7     tripartition, purely practical matters can be exchanged by e-mail.  If

 8     not purely practical if there is any e-mail exchange, it should be put on

 9     the record sooner or later.  If it is a matter of substance, then the

10     e-mails should be filed so as to make the record fully transparent.

11             In this case, finally, the Chamber was in a position at this

12     moment to -- because we had to file something anyhow to use that

13     opportunity to do what we expect the parties to do under those

14     circumstances.  At this moment I think that if everyone is fully and

15     constantly aware of what the background thoughts are, then there should

16     be no reason for major disagreement or major problems.

17             MR. MISETIC:  Mr. President, if I could just -- I forgot to add

18     one thing.

19             JUDGE ORIE:  You said there were two things.

20             MR. MISETIC:  Well, I had two things, but there is a third matter

21     I should have addressed initially.

22             We are going to add Mr. Rajcic to our Defence witness list as

23     well.  The reason being that there may be issues that come up with

24     witnesses in the Defence case concerning artillery where new factual

25     matters come up that will -- or new documents come in from the

Page 17631

 1     Prosecution or the Defence that need further comment by Mr. Rajcic.  For

 2     that reason when we disclose our witness list, he will be on the witness

 3     list.  To that extent, I just wanted the Chamber to know that in its

 4     consideration of how we recall Mr. Rajcic, whether we wait to see if, at

 5     the end of the day, towards the end of the Defence case, he will be

 6     recalled again, and therefore potentially a third time, or if for

 7     whatever reason we ultimately chose not to recall him because there

 8     weren't additional issues, there is of course - we're in the Defence case

 9     now essentially - the opportunity for the Chamber then to give the

10     Prosecution an opportunity to recall him because of the Defence has

11     chosen not to call him, even though he is on the witness list.  But at

12     this point we cannot know for sure, and it depends really on what happens

13     in the initial parts of the Defence case whether the Defence will be

14     calling Mr. Rajcic.

15             Thank you.

16             JUDGE ORIE:  Thank you, that is it clearly on the record now.

17             These are the matters that the Chamber wanted to raise.  Are

18     there any other matters that we have to urgently deal with?  Because

19     we'll not be in court for a while.

20             MR. TIEGER:  Very quickly, Your Honour, again, without making a

21     drama out it as the Court has urged, I just want to underscore the

22     Prosecution's earlier expressed concern about the distinction between

23     e-mails and motions.  I understand that at the both ends of the spectrum,

24     formal motion on the one hand, practical communications on the other that

25     are e-mails, the Court' guidance that when something that normally would

Page 17632

 1     fall at the practical end of the spectrum, may stray into something

 2     substantive that needs to be memorialised in a formal pleading, it does

 3     so.  But that should not slip into the supplanting of e-mails for formal

 4     motions, and we've expressed our concern about that; we continue to have

 5     that concern for a variety of reasons.

 6             JUDGE ORIE:  Yes.  That's clear we have to find a fair balance

 7     between practicality and transparency.

 8             MR. MISETIC:  Your Honour, if I could just comment.  I agree with

 9     that, just in the context of this particular motion, from our

10     perspective, we wish to be treated the same way.  And again as I say

11     there was no formal order from the Chamber that had been filed in the

12     first place.  But certainly, if e-mails being filed is something that the

13     Chamber wishes, and I have no problem with that, we can file them, but

14     again our issue was with respect to the urgency that the matter needed to

15     be addressed.

16             JUDGE ORIE:  Yes.  The parties might receive soon further message

17     from the Chamber staff on what to copy the Chamber and on what not to

18     copy the Chamber.  That is a matter which was discussed recently with the

19     Chamber and the Chamber staff.

20             Any other matter?

21                           [Trial Chamber and registrar confer]

22             JUDGE ORIE:  Nothing more to be discussed at this moment.  The

23     Chamber will adjourn until the 27th of May, when a pre-Defence

24     conversation will be held.  The courtroom in which this conference will

25     be held is not yet known, so the parties are invited to inquire into

Page 17633

 1     which courtroom we expect you to appear.

 2             We stand adjourned.

 3                            --- Whereupon the hearing adjourned at 10.38 a.m.,

 4                           to be reconvened on Wednesday, the 27th day of May,

 5                           2009.