1 Tuesday, 16 June 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.24 p.m.
5 JUDGE ORIE: Good afternoon to everyone.
6 Mr. Registrar, will you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
8 everyone in the courtroom. This is case number IT-06-90-T, the
9 Prosecutor versus Ante Gotovina et al.
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 In order to hear the evidence for the next witness, I think we
12 have to move into closed session, unless there's any procedural matter
13 that has to be raised at this moment, but I'd rather leave any procedural
14 matters until later.
15 We move into closed session.
16 [Closed session]
11 Pages 18604-18690 redacted. Closed session.
11 [Open session]
12 THE REGISTRAR: Your Honours, we're now in open session.
13 JUDGE ORIE: Thank you, Mr. Registrar.
14 Mr. Misetic, you had a procedural issue .
15 MR. MISETIC: Mr. President, I just wanted to know, for purposes
16 of our preparation for tomorrow and our obligation to the Chamber, in
17 terms of how we will proceed after this witness is concluded --
18 JUDGE ORIE: The next witness is subpoenaed, isn't it?
19 MR. MISETIC: That is correct, but --
20 JUDGE ORIE: So I take it that he'll be offered transportation to
21 the Tribunal tomorrow, and I can't give you any forecast on how he will
22 respond. There are some indications that he might not be very much
23 inclined to follow the subpoena. He's apparently reluctant for a number
24 of reasons, and the Chamber was informed that he said that his health
25 might be of some concern, that he was insufficiently prepared, and that
1 he wanted to talk to his lawyer.
2 Now, to keep matters short, and without giving a full legal
3 analysis of all of these problems, witnesses who appear without having
4 consulted a lawyer, as such, it's not a reason to expect that they will
5 not be available to give testimony. Further, from the recent history of
6 preparing the subpoena, you will certainly be aware that the Chamber was
7 concerned not to deal with the witness directly, without a lawyer who had
8 assisted him earlier when he was an accused, would know about it. Of
9 course, finally, it's for a witness to see whether he wants to seek legal
10 advice, yes or no.
11 The second issue, whether you are fully prepared, I think the
12 witness doesn't have to prepare for giving testimony. This is also not a
13 complete legal analysis; it's just a brief summary.
14 Finally, there's the issue of the health. Now, the Chamber was
15 aware that some health reasons apparently bothered this witness, and of
16 course the Chamber would not ignore such signals, as a whole. Therefore,
17 I inform the parties, including you, Mr. Misetic, that on the 10th of
18 June - it was before issuing the subpoena - the Chamber wanted to be
19 satisfied that there were no serious medical reasons which would prevent
20 the witness from testifying. And Chamber staff sent the following text
21 to Mr. Fraser Gilmour, who is in charge of the Detention Unit, and I'll
22 read it so that it is on the record:
23 "The Chamber is now seized with a subpoena request for Mr. Mrksic
24 to testify in the Gotovina et al trial. Should there be any pressing
25 reasons why you would consider that the physical or psychological
1 condition of Mr. Mrksic would be a serious obstacle for Mr. Mrksic to
2 appear in court, please inform the Chamber accordingly. There's no need
3 to inform the Chamber if no such indication exists. If, however - and we
4 have no reasons to expect this - such an obstacle would exist, the
5 Chamber would like to hear from you by Friday noon what it is that causes
6 your concern; personal observations, medical documents, recent serious
7 complaints, planned surgeries, et cetera."
9 signals it received, as you are aware of.
10 We have received an answer to that, that no such obstacles did
11 exist. And it nevertheless caused this letter -- this e-mail, rather
12 than any specific medical concern, to ask for further medical
13 examination, which, as may appear from this e-mail, was certainly not
14 something the Chamber was seeking.
15 At this moment, therefore, the situation is that we have asked
16 this information before issuing the subpoena, that the answer we received
17 was that such clear obstacles did not exist, and whoever may have thought
18 that it was necessary, we didn't ask for it, to try to seek the witness
19 to be further medically examined. I do understand that it is to be
20 scheduled, but it's not inspired, from what the Chamber understands, by
21 anything else than this e-mail.
22 This e-mail was sent out of an abundance of caution, not to
23 confront the witness with a subpoena if the responsible officers in the
24 UNDU had serious reasons to believe that it would be irresponsible to ask
25 him to come to court.
1 That is the present situation. We'll see what happens tomorrow.
2 I can't give any further --
3 MR. MISETIC: Mr. President, if I could --
4 JUDGE ORIE: -- forecast.
5 MR. MISETIC: If I could just put one thing on the record, in
6 terms of giving the Chamber notice of a request. Depending on how things
7 transpire tomorrow, and if, in fact, the witness refuses to either appear
8 or to testify, we will ask the Chamber to issue the same instruction or
9 same order to the parties and the witness that there be no communication
10 with the witness after his scheduled appearance time concerning the
11 substance of his testimony. We do not want the witness or -- to delay or
12 engage in a series of delays so that he may attempt to either inform
13 himself or get informed about testimony in this case. And for that
14 reason, depending on how things transpire tomorrow, regardless of whether
15 he appears, we will ask for that same instruction tomorrow.
16 JUDGE ORIE: You have already something to think about, what may
17 be requested tomorrow by Mr. Misetic.
18 Mr. Hedaraly.
19 MR. HEDARALY: I do realise we are over time --
20 JUDGE ORIE: Yes.
21 MR. HEDARALY: But we did inform the Chamber informally, and the
22 reason we did was that our understanding, of course, is that the witness
23 has, through his counsel, who we talked to, said that he did want his
24 counsel present. Now, we're just relaying this information to the
25 Chamber, as officers of the court. It is not a full legal analysis,
1 either, but just wanted to be clear that whereas there is some degree of
2 speculation whether the witness will ask for counsel, there is some
3 indication, at least to us, through his lawyer, that he has, although he
4 made such a request to his lawyer. I just wanted to point that out for
5 the record, and then we leave it in the Chamber's hands.
6 JUDGE ORIE: I think the presence of counsel for witnesses is
7 usually not the real issue, but the role they may or may not play can be
8 an issue, and in that respect it may make a difference whether someone is
9 still facing further prosecution or whether someone has been finally --
10 of whose case has been finally disposed of.
11 MR. HEDARALY: Absolutely. The only practical issue is that the
12 lawyer is not present now in The Hague, so to the extent that -- it's one
13 thing that he's there. I just want to point out for the record, that if
14 the witness comes tomorrow and the Chamber finds that his counsel has the
15 right to be present, in whichever manner it is, counsel is not here.
16 JUDGE ORIE: Whether he has a right or whether a request for the
17 presence of a lawyer is granted are two different -- totally different
18 matters. Let's not mix them up.
19 Now, as far as I understand, Mr. Hedaraly, that this witness,
20 when he was at trial, was represented by two lawyers. Of one of them, I
21 know that he is at this moment defending another case before this
22 Tribunal. Would it mean that neither of the two would be in The Hague
23 this moment?
24 MR. HEDARALY: Yes, that is correct, Your Honour. At least that
25 is our understanding. Of course, I mean, we're just relaying this
1 information. We don't actually -- are unable to verify what is being
2 told to us. We are simply conveying that to the Chamber, if the Chamber
3 thinks that it will have a bearing or can have a bearing. If not, we can
4 proceed tomorrow.
5 MR. MISETIC: Mr. President, this is exactly the situation that I
6 wished to avoid. It's something that I anticipated, in terms of, Now I
7 want a lawyer present, my lawyer's schedule is very busy, we're going to
8 have to reschedule for two weeks from tomorrow.
9 As the Chamber is aware, I've sent e-mails to his counsel since
10 the 14th of May. They have never communicated to me a desire to be
11 present or an intention for their client to assert a claim to have
12 counsel present.
13 Whatever conversations he's having with a party that is not
14 calling him in this case is certainly his -- their conversation. They
15 are completely aware that they should be talking to me. And as a matter
16 of fact in the subpoena the Chamber specifically put, in the context of
17 protective measures, that they should contact the Gotovina Defence.
18 Accordingly, I wish to avoid a situation where we're starting to
19 discuss counsel for witnesses who no one can seem to indicate are in any
20 jeopardy in any court in the world, and then to delay that, and that yet
21 another reason why we will ask the Chamber tomorrow to issue the order
22 precluding communication by the parties on the substance, and certainly
23 the witness communicating with anyone on the substance of his testimony.
24 Thank you.
25 JUDGE ORIE: Mr. Hedaraly, I repeat what I said earlier, that on
1 this issue you have time to think that over. Thank you for informing the
2 Chamber about what was the subject of your conversation. The Chamber
3 will further consider the matter.
4 I thought it important to be very transparent in respect of the
5 medical aspect of the case. Of course, the Chamber has its own
6 responsibility not to put in jeopardy in any way the health of anyone who
7 appears before this Chamber.
8 We adjourn, and we'll resume tomorrow, Wednesday, the 17th of
9 June, quarter past 2.00, Courtroom I.
10 --- Whereupon the hearing adjourned at 7.12 p.m.
11 to be reconvened on Wednesday, the 17th day of
12 June, 2009, at 2.15 p.m.