Tribunal Criminal Tribunal for the Former Yugoslavia

Page 18603

 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]

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11 Pages 18604-18690 redacted. Closed session.















Page 18691

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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

Page 18692

 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

Page 18693

 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."

 8             The Chamber just did not want to be blind for -- or deaf for any

 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.

Page 18694

 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,

Page 18695

 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 at

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

Page 18696

 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

Page 18697

 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.