Tribunal Criminal Tribunal for the Former Yugoslavia

Page 20808

 1                           Tuesday, 25 August 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 9.01 a.m.

 5             JUDGE ORIE:  Good morning to everyone in the courtroom and those

 6     just around assisting us.

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

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

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

10     the Prosecutor versus Ante Gotovina, et al.

11             JUDGE ORIE:  Before we continue the examination of the present

12     witness, I would like to turn into private session for a second.

13                           [Private session]

14   (redacted)

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Page 20809

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4                           [Open session]

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

 6             JUDGE ORIE:  Thank you, Mr. Registrar.

 7             May I take it there are no other procedural matters to be

 8     discussed at this moment.  Therefore, Madam Usher, could you please

 9     escort the witness into the courtroom.

10             MS. GUSTAFSON:  Just to save time, Your Honour, while the witness

11     is coming up in, if I could have the Registrar to bring up P2604, at

12     page 38.  Thank you.

13                           [The witness takes the stand]

14             JUDGE ORIE:  Good morning, Mr. Bajic.

15             Mr. Bajic, may I remind you that the solemn declaration you gave

16     yesterday at the beginning of your testimony is still binding you.  That

17     is, that you will speak the truth, the whole truth, and nothing but the

18     truth.

19                           WITNESS:  MLADEN BAJIC [Resumed]

20                           [Witness answered through interpreter]

21             JUDGE ORIE:  Ms. Gustafson will now continue her

22     cross-examination.

23             Please proceed.

24             MS. GUSTAFSON:  Thank you, Your Honour.

25                           Cross-examination by Ms. Gustafson: [Continued]

Page 20810

 1        Q.   And good morning, Mr. Bajic.

 2             Mr. Bajic, I had just one additional question on the KT register

 3     that we were looking at yesterday that I neglected to ask at the time.

 4             MS. GUSTAFSON:  And if we could look at the second entry on this

 5     page, which is entry 796.

 6        Q.   And this is one of the ones we looked at yesterday.

 7             MS. GUSTAFSON:  And if we could then go to the next page of the

 8     register where this entry continues.

 9        Q.   And you can see under column 32 it refers -- that column entry

10     states:  "Judgement or first instance decision."

11             And that entry has a date of 6 December 1996 and refers to a

12     transfer of this case file to the municipal prosecutor's office in Knin.

13     And I'd just like to confirm with that you this entry refers to a

14     transfer related to the termination of the Military Prosecutor's Office

15     at that time, in December of 1996, and the transfer of all existing case

16     files from the Split Military Prosecutor's Offices -- office to civilian

17     prosecutor's offices.

18             Is that a correct understanding of that entry?

19        A.   Yes.  On the 6th of December, 1996, military courts and Military

20     Prosecutor's Offices were abolished, and all pending cases, or cases

21     where final decisions had not been taken, were referred to the regular

22     prosecutor's offices.  The cases where final decisions were taken were

23     filed in the Split county prosecutor' office where they can still be

24     found today.  Thus, this particular file was referred to the Zadar

25     prosecutor's office on the 6th of December, and bears this particular

Page 20811

 1     reference number that we have here.

 2        Q.   Thank you.  And in contrast to this transfer of all the files in

 3     December of 1996, if a case was referred to a civilian prosecutor's

 4     office in circumstances where the suspect had been demobilised before the

 5     indictment was issued or in circumstances where it was discovered that

 6     the suspect was not a HV member, that would be entered in column 26 on

 7     this chart, where it says:  "Deferred to other public prosecutor's

 8     office."

 9             Is that right?

10        A.   Yes.

11        Q.   Thank you.  I'd like to move on to another topic now which is the

12     duty that you referred to yesterday of commanders to file criminal

13     reports.  And you testified yesterday about a general duty imposed on all

14     members of state institutions to file criminal reports when they become

15     aware of a crime.  And I'd like to ask you a few more specific questions

16     about the duties of commanders in the Croatian army in relation to the

17     conduct of their subordinates.

18             And my first question is:  You testified yesterday that you're

19     not a professional soldier.  Do you have any specialised knowledge or

20     training in the duties of Croatian army commanders, vis-a-vis the conduct

21     of their subordinates?

22        A.   No, I'm not a professional soldier, and I didn't attend any sort

23     of training.  My answer had to do with the general provisions of the Law

24     on Criminal Procedure, i.e., Article 141 of the law of the time, which

25     provides for all public authority bodies and all state institutions and

Page 20812

 1     their duty to report to the law enforcement agencies of all the criminal

 2     offences they become aware of, including commanders of units.

 3        Q.   Thank you.

 4             MS. GUSTAFSON:  If we could go to Exhibit P1007, please.

 5        Q.   In your testimony yesterday, you were asked questions about

 6     criminal versus disciplinary proceedings and you explained that criminal

 7     procedures are quite distinct from disciplinary procedures, and you said

 8     that Military Prosecutor's Offices and military courts had nothing to do

 9     with disciplinary procedures.

10             And --

11        A.   Correct.

12        Q.   -- in light of the fact that you've given evidence that these are

13     two distinct systems, I'd like to ask you, again, whether have you any

14     specialised knowledge or training in the structure or operation of the

15     system of military discipline that was in place at the time of Operation

16     Storm?

17        A.   No.  And I have no other knowledge than the general knowledge a

18     lawyer would have.

19        Q.   Thank you.

20             MS. GUSTAFSON:  Could we go to page 2 in the English and page 2

21     in the B/C/S of this document, please.

22        Q.   Mr. Bajic, if I could direct your attention to Article 3 of this

23     law.

24             MS. GUSTAFSON:  And if we could move to the next page in the

25     English.  I'm particularly interested in point 7, under Article 3.

Page 20813

 1        Q.   And you can see that, according to this Article, violations of

 2     the Code of Military Discipline include commission of a crime for which

 3     proceedings are initiated ex officio.

 4             MS. GUSTAFSON:  And if we could go to page 10 in the English and

 5     page 4 in the B/C/S.

 6        Q.   If you could look at Article 31, paragraph 1, where it says:

 7             "In situations where the authorised officer finds that the

 8     offence against military discipline is also a criminal offence, the case

 9     shall be sent via regular channels to the authorised prosecutor; if he

10     thinks that it is in the interest of the service, he shall also initiate

11     disciplinary procedures."

12             Now, you were asked yesterday about the possibilities of parallel

13     investigations by military commander and by the military police, and

14     those questions were not very specific as to the type of investigation

15     involved.  Would you agree, as indicated by these Articles of the

16     Military Discipline Code that a commander can conduct disciplinary

17     proceedings in parallel to a criminal investigation?

18        A.   Absolutely.  I said so myself yesterday that criminal procedure

19     or criminal proceedings are quite distinct from military disciplinary

20     proceedings, and I spoke of the criminal proceedings yesterday.  In other

21     words, yes, it's possible.

22        Q.   Thank you.  I'd just like to move on to another topic briefly.

23             You were asked questioned yesterday about the case-load of the

24     Military Prosecutor's Office.  And my question is simply this:  To your

25     knowledge, did the Split military prosecutor ever drop a case or fail to

Page 20814

 1     indict or prosecute a case because it was too busy to do so?

 2        A.   No.  I'm glad that you put the question to me.  I'd like to

 3     dispel any possible doubts about the conduct of Military Prosecutor's

 4     Offices.

 5             I tried to explain this yesterday, and I should clarify it today.

 6     All criminal reports, absolutely all criminal reports filed before

 7     military prosecutor in the Military Prosecutor's Office in Split either

 8     against known or unknown persons, were received by us, registered in the

 9     register and processed.  The fact that there were five or six military

10     prosecutors and deputies did not have a bearing on either the quality of

11     their work or on the fate of these cases, whether they would be closed or

12     not.  They were processed according to the pace when they were received,

13     and all those that were not processed by 6th December, 1996, were

14     specified and referred to regular prosecutor's offices, and they were all

15     brought to a close, according to the prescribed procedure.

16        Q.   Thank you.  Now, based on our analysis of the KT register, during

17     August and September 1995, the Split military prosecutor received a total

18     of five reports against known perpetrators that are relevant to the

19     indictment in this case; and that's basically, as I said yesterday,

20     looting, destruction, and killings in a number of municipalities in

21     Sector South during August and September.  And these are four cases of

22     aggravated theft and one murder case.  And more generally, our analysis

23     of the same register, up until the end of March 1996, indicates a total

24     of 31 reports relevant to the indictment in this case.  Two are for

25     murder, one is for robbery and the rest are theft cases.  And there are,

Page 20815

 1     in addition, 18 other criminal reports that relate to looting in the

 2     liberated area after Operation Storm but they're outside the scope of

 3     this indictment, either because of the time that they were committed or

 4     the location.

 5             And when you were asked about the number of reports related to

 6     this indictment received in August in your interview with the

 7     Prosecution, you stated that the number of crimes committed was actually

 8     much larger - this is at paragraph 7 of your statement to the

 9     Prosecution - but you noted that reports were also filed with civilian

10     prosecutor's offices, and you added that it was your recollection that

11     most of the crimes were committed in September, October, and November;

12     but I said you didn't analyse this yourself but that reports on this were

13     being submitted through the Ministry of Justice's offices for cooperation

14     with the ICTY.

15             So I'd just like to clarify that answer about your information on

16     the number of crimes that were committed at different times.

17             Is it right that your understanding that most of the crimes were

18     committed in September, October, and November is based primarily on

19     reports that Croatia has sent to the ICTY; is that accurate?

20        A.   Yes.  What I said under item 7 in my discussions with you when

21     you were in Zagreb and what I said yesterday is something that I

22     confirmed, this is my view of the matter.  The material that you

23     presented which is based on the archives of the Military Prosecutor's

24     Office in Split is absolutely correct and accurate.  My understanding of

25     the situation at the time when I was deputy military prosecutor in Split

Page 20816

 1     was that most of the documents at the time were filed before regular --

 2     regular prosecutor offices in Sibenik, Sinj, Zadar, and Split.  I was

 3     aware of the actual figures only at a later date based on the information

 4     that the Ministry of Justice of the Republic of Croatia produced in late

 5     1995 when they -- when the ministry asked the prosecutor's offices to

 6     report to the ministry on a regular basis on all the matters related to

 7     Operation Storm.  I recalled that in 2003 an analysis of the cases of the

 8     sort was compiled, containing cases of all the prosecutor's offices from

 9     Zadar, Sibenik, Split, Dubrovnik, and beyond.  The analysis was sent to

10     the Ministry of Justice with a view to disseminating it to the

11     international community.

12             The information contained therein --

13        Q.   Thank you, Mr. Bajic.  I -- I actually wasn't looking for all the

14     details.  I appreciate your thorough answer but I just wanted to

15     understand the nature of the information that you were basing your answer

16     on.  And I understand that it is based on reports on investigations and

17     prosecutions that were conducted, so I understand that your conclusion

18     that most of the crimes were committed in September, October, and

19     November, is based on statistics on the number of investigations and

20     prosecutions.

21        A.   Yes.

22        Q.   Thank you.  And another thing you were asked about yesterday was

23     how frequently it occurred that a person would be suspected of being in

24     the HV because they were wearing a military uniform, and after further

25     investigation, it was established that the person was, in fact, not a

Page 20817

 1     member of the HV.  And you testified that such situations occurred quite

 2     frequently in the aftermath of Operation Storm, "According to the

 3     information I had at the time, a large number of members of the Croatian

 4     army were demobilised."

 5             And you added that:

 6             "While acting upon a certain criminal report, we established that

 7     the person reported was no longer a member of the Croatian army."

 8             My question is this:  Your conclusion that these situations

 9     occurred quite frequently, is that conclusion based on the number of

10     criminal reports received by the Split military prosecutor that were then

11     deferred to municipal Prosecutors when it was discovered the suspect was

12     not a HV member?

13        A.   Well, partly on this sort of personal knowledge, and partly on

14     the fact that it was a well-known fact that after Operation Storm, a

15     great many members of the reserve forces were demobilised.  For this

16     reason, all or most of the reports for Operation Storm were forwarded to

17     regular prosecutor's offices.

18             Furthermore, based on the information published in 2003, which

19     stated roughly that 4122 -- eight -- persons were entered into KT

20     registers of regular and military prosecutors and 2262 persons were

21     entered into the registers for persons unknown, led me to the conclusion

22     that most of the persons reported had, in the meantime, become civilians

23     and lost their status of HV members.

24        Q.   In relation to the reports received by civilian prosecutors, you

25     don't have any specific information as to how many of those reports

Page 20818

 1     involved civilians dressed in military uniforms, do you?

 2        A.   No, I don't have any specific indicators.  What I know from

 3     personal knowledge is that my office, at the time when I was the

 4     prosecutor and in 1996, when these cases were being processed, on the --

 5     there was a colleague from the Split municipal prosecutor's office in my

 6     building and they consulted me on how these decisions and indictments

 7     should be formulated.  From these numerous contacts, I received

 8     additional information to the statistics that I referred to a moment ago.

 9        Q.   Well, of the 49 criminal reports in the KT register that relate

10     to the crimes of burning, looting, or killing after Operation Storm in

11     the liberated area, 19 of them indicate, according to the register, that

12     they were deferred to municipal prosecutors.  And as you testified

13     yesterday, these cases could have been deferred either because it was

14     discovered that the person was not a HV member at the time of the crime,

15     or because the person ceased to be a HV member before being indicted.

16             So the concrete information that you base your conclusion about

17     civilians in uniform on, would that concrete information be some portion

18     of these 19 reports that were deferred to municipal prosecutors?

19        A.   I can't tell you with certainly where I got the information from,

20     whether it was from the cases themselves, or from conversations with my

21     colleagues, fellow prosecutors, who worked on them.

22        Q.   Thank you.

23             MS. GUSTAFSON:  If we could move now to 65 ter 7374.

24        Q.   And, Mr. Bajic, this is the first tab in the bundle of case files

25     that I gave you yesterday, if you want to refer to the hard copies.

Page 20819

 1             MR. MISETIC:  Mr. President, if I could just get some

 2     clarification while switch to go a new topic.  I'm not sure I followed

 3     counsel's question at page 7, lines 13 through 15, that there were only a

 4     total of five reports against known perpetrators in the KT register.

 5             MS. GUSTAFSON:  I think I clarified that that was in August and

 6     September.  Reports received in August and September.  That was my --

 7             MR. MISETIC:  Reports received but not for crimes committed in

 8     August and September.

 9             MS. GUSTAFSON:  Yes.

10             MR. MISETIC:  Okay.  All right.

11             JUDGE ORIE:  This being clarified, please proceed.

12             MS. GUSTAFSON:  Thank you, Your Honour.

13        Q.   This case, Mr. Bajic, relates to entry KT 989 in the register,

14     and it's -- is the conviction of two HV members for looting in Knin on

15     the 31st of August, and in that case they were stopped by the MP at the

16     Knin train station.

17             Did you have an opportunity to look at this case overnight?

18        A.   Yes.

19        Q.   Thank you.

20             MS. GUSTAFSON:  If we could go to page 8 in the English and page

21     7 in the B/C/S.

22        Q.   And the -- around the middle of the page it says -- it refers to

23     the defence of Marinko Sabljic, and according to his defence, he said:

24             "Upon their arrival in Knin Petar Vujnovac remained in a cafe to

25     have a drink there, while himself and Grubicic continued driving through

Page 20820

 1     the town and they saw many trucks and soldiers near some houses loading

 2     various objects on to those trucks."

 3             And if we move to the next page in the English at the bottom,

 4     it's the same page in the B/C/S and it refers to the defence of

 5     Damir Grubisic.  And he says:

 6             "In the vicinity of the spot where they wanted to park the

 7     vehicle, they saw some members of the HV taking various items from the

 8     houses and loading them on to the trucks; it was right there that one

 9     Croatian soldier asked them to transport for him some of those items that

10     were scattered in front of the houses to the railway station which they

11     accepted and loaded onto the truck ..."

12             MS. GUSTAFSON:  And if we could look at another case now.

13        Q.   I'm just going to point you to a few items, and I will ask you

14     some questions about it.

15             MS. GUSTAFSON:  This is 65 ter 7375.

16        Q.   And this relates to entry KT 997 in the register.  And it is the

17     conviction of a member of the 113th Brigade for looting in the village of

18     Kosovo on the 2nd of September, 1995.  And the case file indicates he was

19     indicted on the 11th of November, 1995, and the judgement rendered on 1st

20     of February, 1996.

21             MS. GUSTAFSON:  And if we go to page 5 of the English and page 4

22     of the B/C/S.

23        Q.   At the top of the page in the English, it indicates that since

24     he's -- since the time of his indictment, the soldier in question has now

25     become an active member of the 72nd Military Police Battalion Company in

Page 20821

 1     Sibenik.

 2             And a little bit further down on the page in English, the bottom

 3     of the large paragraph the court says:

 4             "Moreover, the reasons for the commission of this crime given by

 5     the accused in his defence are not acceptable, because the commission of

 6     such crimes must not be a rule for somebody to obtain some item that he

 7     or she may need, nor may there be a justification in the fact that

 8     everybody is 'loading and carrying things off, so why not me?'."

 9             MS. GUSTAFSON:  And if we could go to 65 ter 7376, which is the

10     third tab in your bundle.  And this case is KT 1000.  It relates to the

11     conviction of a number of members of the 204th Brigade for looting in

12     Golubic on the 8th of September, 1995.  And if we go to page 10 in the

13     English and the seventh page in the B/C/S.  And at the beginning of the

14     English it says:

15             "From the defence of the first accused Davor Zdrilic, it follows

16     that at the time of the commission of the charged crime he was a member

17     of the Croatian army, that is, they were in the Golubic area together

18     with young conscripts where there was the command of the 204th Brigade of

19     the HV.  It has also been mentioned that in front of the command the

20     conscripts were loading various household items onto the trucks, which he

21     assumes were probably brought there by somebody."

22             And if we could move down to the middle of the page in the

23     English and to the next page in the B/C/S.

24             This refers to the defence of the second accused and it says:

25             "He stated in his defence that at the time he was a member of the

Page 20822

 1     Croatian army at the guard post above Golubic and that he, after his

 2     shift, came to Golubic and near the command saw a truck that had already

 3     been loaded with various items, and since he wanted to go to Zadar, he

 4     asked them to drive [sic] him to Zadar."

 5             And if we could go to page 13 in the English and, again, the next

 6     page in the B/C/S.  Near the bottom in English and in the middle in the

 7     B/C/S it states that the sixth accused Vlade Lukic states in his defence

 8     that on the charged event they were in the position in the Golubic area

 9     that is, that he was this charge of communications and that he remembers

10     that items required for the units were at that time taken from that area.

11     As for the charged event itself, he remembers that he loaded the tools

12     for himself onto the truck, but since it was already dark he cannot

13     recall whether anybody else loaded anything and which items they were;

14     however, he remembers that the commander allowed them to take the truck

15     to transport the items and that they can go home with it.

16             And if we go to the next page in the English and the next page in

17     the B/C/S.  And it's near the bottom in the English and at the top in the

18     B/C/S.  And it says:

19             "The witness Miodrag Pavic has pointed out in his testimony that

20     on the charged event 15 of them, military conscripts, were loading the

21     items listed in the indictment onto the truck under the order probably

22     given by the battery commander and that two of them, namely, himself and

23     Stipe Vulic, who were both conscripts, were designated to escort the

24     truck; however, he knew neither where they were going nor whom the said

25     items were for."

Page 20823

 1        Q.   Now, having read these files and based on your experience as a

 2     prosecutor and as a military prosecutor at the time of these events,

 3     would you agree that these cases contain indications, and I'm referring

 4     specifically to indications such as large group of HV soldiers loading

 5     looted items onto trucks in Knin, a soldier under indictment for theft

 6     becoming a member of the 72nd Military Police Battalion and a large group

 7     of conscripts loading looted items onto a truck in front of their unit

 8     command.

 9             Do these indications indicate to that you looting was, to some

10     extent, accepted or permitted within the HV units at the time?

11        A.   I absolutely agree with your conclusion.  Besides, it is a fact

12     that I have to reiterate, that all reports of criminal offences submitted

13     to state prosecutors were processed, but the problem did not lie with

14     military prosecutor's cases but the cases which went unreported.  Your

15     conclusions are valid.  I concur with the conclusion that this was a

16     phenomenon which can be read in the explanations to the judgements from

17     testimonies of witnesses and opinions of judges and, indeed, such cases

18     were numerous in other -- in regular prosecutor's offices because of the

19     change of status of perpetrators.

20             Yes, I do agree with all you've said.

21        Q.   Thank you.  And just one minor question.  On this last case, this

22     judgement was rendered on the 5th of November, 1998 and that was, of

23     course, after the Law on Amnesty was passed.  And in your evidence

24     yesterday you stated that the amnesty law related to acts that had

25     something to do with aggression, armed rebellion, or armed conflict.  And

Page 20824

 1     I would just like to clarify with you that the amnesty law was not

 2     applicable and that it did not amnesty crime such as burning, looting, or

 3     killing committed after Operation Storm; is that right?

 4        A.   Absolutely correct.  In the text of the general amnesty law dated

 5     1996, it reads that the Law on General Amnesty shall apply only to

 6     persons who committed their offences in connection with the war but it

 7     shall not be applied to war crimes or criminal offences against

 8     international humanitarian law, et cetera.

 9             So in this case, when it concerns looting, robbery, theft, arson

10     committed after the operation or during the operation, the Law on General

11     Amnesty was not applied.  This was not the goal and the purpose of that

12     law.

13        Q.   Thank you.

14             MS. GUSTAFSON:  I'd like to tender these three case files, 65 ter

15     7374 through 7376, please.

16             MR. MISETIC:  No objection.

17             JUDGE ORIE:  Mr. Registrar.

18             THE REGISTRAR:  Your Honour, 65 ter 7374 becomes Exhibit P2608;

19     65 ter number 7376 becomes Exhibit P2609; and 65 ter number 7376 becomes

20     Exhibit P2610.

21             JUDGE ORIE:  Thank you, Mr. Registrar.  P2608, P2609, and P2610

22     are admitted into evidence.

23             MS. GUSTAFSON:  Thank you, Your Honour.

24             If we could move now to D1619, please.

25             JUDGE ORIE:  Ms. Gustafson, could I ask one point, clarification.

Page 20825

 1             Mr. Bajic, you said, yes, these crimes were not exempted from

 2     prosecution because the Law on Amnesty did not apply.  And you gave two

 3     categories; the first is that the crimes, in order to be covered by the

 4     Law on Amnesty should be crimes committed in connection with the war,

 5     and, at the same time, they should not be war crimes or violations of

 6     international humanitarian law.

 7             Now, the categories here, were they not covered by the Law on

 8     Amnesty because they were violations of international humanitarian law,

 9     or were they not covered by the Law on Amnesty because they were not

10     linked anymore to the armed conflict?

11             Which of the two would apply here?  Is it the time-frame; or is

12     it the character of the crime?

13             THE WITNESS: [Interpretation] The criminal offences that we

14     discussed through those three documents could not be exempted pursuant to

15     the general amnesty law because they were not committed in connection

16     with the war.

17             JUDGE ORIE:  Thank you.

18             Please proceed.

19             MS. GUSTAFSON:  Thank you, Your Honour.

20        Q.   Mr. Bajic, in front of you is an invitation on the screen dated

21     27 September 1995 to, among other individuals, all military prosecutors,

22     and it's an invitation to a joint working session on 19 October 1995.

23             Do you recall whether you attended this meeting?

24        A.   No, I did not attend it because this invitation did address all

25     military prosecutors.  I was a deputy military prosecutor.  I believe

Page 20826

 1     that there were four or five military prosecutors in general.  Apart from

 2     that in Split, there was one in Karlovac, Zagreb, Osijek, Rijeka, et

 3     cetera.  And this invitation was addressed to them.  Deputy military

 4     prosecutors did not attend, because the invitation did not involve them,

 5     so I did not attend the meeting myself.

 6        Q.   Thank you.  And the subject, according to this invitation, is for

 7     the purpose of ensuring efficient prevention and removal of the observed

 8     faults and punishable acts in the armed forces of the Republic of

 9     Croatia.  And for the purpose of ensuring lawful and regular operation of

10     the bodies of the Ministry of Defence, et cetera.

11             MS. GUSTAFSON:  And if we could go to D1621.

12        Q.   Now, I understand you weren't at this meeting, but I would like

13     you to show you the conclusions from that meeting and ask you if you can

14     assist the Court, based on the knowledge that you have from the working

15     office.

16             And I'd like to direct your attention, in particular, to items 6

17     and 7 where it says:

18             "The Ministry of Defence shall commit commands of the units of

19     the armed forces ... to act in accordance with the law regarding serving

20     of court summons to members of the armed forces ..."

21             And:

22             "The Ministry of Defence shall commit units, the Main Staff, and

23     the commands of the Military Districts to meet the court requests fully

24     in a timely manner.  Also regarding the submission of necessary evidence

25     for specific cases," et cetera.

Page 20827

 1             And my question is:  Based on your experience in the Military

 2     Prosecutor's Office in Split, did you have problems with the HV units and

 3     Military District Command in serving court summons and having them meet

 4     court requests fully and in a timely manner?  And I'm talking about the

 5     time-period after Operation Storm.

 6             MR. MISETIC:  Object as to foundation, how this witness would

 7     know whether the court was having problems serving summons.

 8             JUDGE ORIE:  Well, I do not see serving summons specifically

 9     mentioned here.  Apart from that, let's hear the answer of the witness

10     and let's find out what the basis of his knowledge is.

11             Could you please answer the question, Mr. Bajic.

12             THE WITNESS: [Interpretation] At working meetings such as this

13     was, what was discussed was how to make the operations of military

14     prosecutors and military courts as effective and expedient as possible.

15     Because of frequent change of address and stations of different military

16     personnel and military units, there was -- there were problems in speedy

17     communication in requests of certain documents and in the -- in the

18     service of summons because we could -- we often had to postpone hearings

19     because soldiers did not heed summons, so I can see that military

20     prosecutors and military judges sought assistance at such a meeting as

21     this one, was based on their experience.  This is how I see the whole

22     situation.

23             MS. GUSTAFSON:

24        Q.   And did you personally encounter instances where hearings you

25     were involved in had to be postponed because soldiers didn't heed the

Page 20828

 1     summons?

 2        A.   Yes, there were such occasions.  There were such occasions.  As I

 3     say, the problem was the service of process, addresses, and failure to

 4     appear before court but that was particularly problematic in 1991, 1992,

 5     due to lack of respect to military justice system.  But things improved

 6     subsequently.

 7             Those conclusions that we can see concern assistance sought from

 8     the Ministry of Defence to help the processes that Ministry of Justice

 9     was in charge of.

10        Q.   Thank you.  Now I'd like to turn to ask you a few questions to

11     follow up on the --

12             JUDGE ORIE:  Ms. Gustafson, sorry to interrupt you.

13             You read paragraph 7 to the witness, which seems to deal

14     primarily with obtaining evidence, but you focussed your question on

15     the -- the serving of court summons, which seems to be the subject matter

16     of paragraph 6.  I'm a bit confused by this --

17             MS. GUSTAFSON:  Your Honour, I was following up on an answer the

18     witness had given about problems serving summons, and I was just asking

19     him if he had personally experienced these problems.  It was follow up to

20     his evidence.

21             JUDGE ORIE:  Thank you.

22             Please proceed.

23             MS. GUSTAFSON:

24        Q.   Mr. Bajic, I would like to ask you now a few questions about the

25     evidence you gave on the role of the military police in preventing and

Page 20829

 1     detecting perpetrators of criminal offences.  And in particular in your

 2     statement to the Defence at question 14 you said:

 3             "After determining that a criminal offence has been committed,

 4     the criminal" -- sorry, "The civilian police conducts criminal processing

 5     of the case."

 6             And you said:

 7             "In the course of the processing of the case it would be

 8     established that the perpetrator was a member of the military, the

 9     military police would then take over the criminal processing."

10             And yesterday you expanded on than a little bit, and you -- in

11     particular when you were asked who had jurisdiction to begin an

12     investigation into an incident where it is reported that unnamed members

13     of the Croatian army were in the vicinity of houses that are on fire,

14     your answer was:

15             "You see, it is dubious on the basis of what you asked me,

16     whether there are sufficient grounds to suspect that those members of the

17     HV perpetrated that criminal offence or the perpetrators were completely

18     unknown and possibly civilians.  But regardless of that, in such a

19     situation, forces of law, as the law states, have to undertake all the

20     possible and necessary measures to secure evidence and to conduct

21     inquiries or pre-criminal investigation and in such a case, both the

22     civilian police and the military police, whichever is closer to the

23     scene, should do something; or if the perpetrators are unknown, then

24     bodies of general jurisdiction would have primacy, which means civilian

25     police, and if there's grounds to suspect that the perpetrators are

Page 20830

 1     military personnel, then the military police would be duty-bound to act."

 2             I would just like to look at a couple of more concrete examples

 3     which are contained in P886.

 4             MS. GUSTAFSON:  If we could have that on the screen.

 5        Q.   And this is the duty service log-book of the Knin military police

 6     company.

 7             MS. GUSTAFSON:  And if we could go to page 4 of the B/C/S and the

 8     first page of the second English translation attached to this document.

 9     And this is the page for 11th of August.  If we could look at the entry

10     for 10.00.

11        Q.   And according to this entry, information is received from the

12     40th Engineers Company, reporting shooting and arson in Kovacic hamlet.

13     And in the last column the remarks say that Cobra 40 patrol, which is a

14     military police patrol, is sent; report attached.

15             MS. GUSTAFSON:  And if we could go to page 16 in the English and

16     page 16 in the B/C/S.  This is an entry from the 23rd of August.  If we

17     could look at the entry for 8.10, which, I believe, is the first one.

18        Q.   And this is information received from the Knin police

19     administration that some 100 metres from the police check-point at the

20     exit for Grude after a fire, a detonation took place, and it is assumed

21     that a HV member set fire to a house.  And the remarks say that:

22             "A patrol sent, Mosor 31 ... at the scene no one was found."

23             And it says:

24             "No HV members were seen to be burning houses."

25             MS. GUSTAFSON:  And if we could go to page 22 in the English and

Page 20831

 1     page 20 in the B/C/S.  This is a report from the 26th of August, and I'm

 2     looking at the entry under 1641, which is number 6.  This is a report

 3     from Ivan Peric, civilian, owner of the house in Lukar.  And it says:

 4             "Slavko Peric, HV, is threatening him and his son Tomislav in

 5     Lukar ... and a patrol was dispatched but did not find the HV on the

 6     scene."

 7             And finally, if we could look at entry on page 55 in the English

 8     and page 38 in the B/C/S.  And this is from the 9th of September.  And if

 9     we look at the entry under 2010, number 1.  And this is report from the

10     Knin police administration that, on the road towards Stara Straza,

11     uniformed persons have been observed setting houses on fire.  And under

12     the remarks it says:

13             "As it is dark, it is better that the patrols go out tomorrow."

14        Q.   And my question is:  The entries we just looked where the Knin

15     military police company is receiving reports of possible crimes by HV

16     members and sending patrols or, at least in that last case, deciding to

17     send a patrol the next day, would you agree that these are examples where

18     there are grounds to suspect that the perpetrators are military personnel

19     and, as a result, the military police is responding to these incidents?

20        A.   I do agree.

21        Q.   Thank you.  And yesterday you were asked about what a HV

22     commander should do if he has information that a crime has been

23     committed, and you were asked questions about how often he should report

24     such a crime to the military police.  And you prefaced your answer by

25     saying that weren't a professional soldier and you can't say exactly what

Page 20832

 1     the procedure was within a given unit, depending on the position the

 2     commander had, and I'd just like to explore the basis for your answers a

 3     bit more.

 4             Now, again, in your evidence yesterday and today, you have

 5     explained your familiarity with the duty of members of state bodies

 6     generally to report crimes, and you said earlier today also that you had

 7     no specialised knowledge or training in the duties of commanders

 8     vis-a-vis their subordinates.

 9             So I'd like to ask you a similar question in respect of your

10     knowledge of the relationship between HV commanders and the military

11     police.  In the note of your interview with the Prosecution, you

12     explained that you didn't have any direct knowledge of the daily actions

13     of the military police in their units.  And this Chamber has received

14     quite extensive evidence, including from a number of military police

15     officials and military police officers, about the system of dual command

16     and control and subordination --

17             MR. MISETIC:  I'm going to object.  I completely disagree on the

18     characterisation of the testimony.

19             JUDGE ORIE:  The structure of command and control, I take it that

20     without qualifying it, Ms. Gustafson, would do.

21             Please proceed.

22             MS. GUSTAFSON:

23        Q.   Mr. Bajic, the Chamber has received extensive evidence about the

24     system of dual command and control and subordination --

25             MR. MISETIC:  Same objection.

Page 20833

 1             JUDGE ORIE:  Ms. Gustafson, the issue is --

 2             MS. GUSTAFSON:  I will rephrase.  I understand.

 3             JUDGE ORIE:  Yes.

 4             MS. GUSTAFSON:  The Chamber has received extensive evidence about

 5     the system of command and control and subordination that existed among

 6     military police units, HV commanders, and the military police

 7     administration.

 8        Q.   My question for you is:  Do you have any specialised knowledge of

 9     the structure and operation of this system of command and control and

10     subordination?

11        A.   No, I do not have any specialised knowledge, and I said as much

12     yesterday and this morning.  I only know the fact that military

13     prosecutors and deputy military prosecutors were in direct communication

14     with representatives of the 72nd and 73rd Military Police Battalion who

15     covered the territory under the jurisdiction of the Split Military

16     Prosecutor's Office.  That they were in communication, above all, with

17     the authorised officials or officers of the criminal investigation

18     departments of these units, and I knew that these units were under the

19     control of the military police administration in Zagreb.

20             As for the other relationships between various military

21     structures on the field, I don't know anything about them and don't want

22     to go into them.  I only know that some -- that I communicated only with

23     the authorised officers of the criminal investigation sections of these

24     units on cases that the Military Prosecutor's Office was seized of.  I

25     did not professionally communicate with others.

Page 20834

 1             There are special rules governing the work of the military

 2     police, and I'm sure that they contained all -- all the information.

 3        Q.   Thank you.  And yesterday you were asked whether, in a situation

 4     where a commander has knowledge that the military police already knows

 5     about a particular crime, whether he has an additional duty to report it

 6     again to the military police.  And your answer included the statement

 7     that:

 8             "If he knows the MP is already seized of the event, it would be

 9     pointless to report to them the same thing.  However, the commander is

10     duty-bound to help, together with his officers, to secure evidence and

11     facts that might be helpful for the future proceedings."

12             And I'd like to ask you a related but slightly different question

13     which is, in a situation that a HV commander is aware that the military

14     police knows about a particular crime committed by one of the commander's

15     subordinates and the commander knows that the military police is not

16     taking steps to ensure that that crime is investigated and punished, do

17     you feel that you have a sufficient knowledge of the systems of command

18     and control, subordination, and duties of HV commanders to tell the court

19     whether the commander should take further steps to ensure that that

20     subordinate is investigated and punished, and, if so, what those further

21     steps might be.

22             Do you think you have the knowledge and expertise to answer that

23     question, and, if so, please go ahead.

24        A.   Yes, I can answer the question; at least according to what my

25     understanding was at the time when I was deputy military prosecutor.

Page 20835

 1             In the situation as you presented it, the commander of a unit,

 2     where he becomes aware of a case being obstructed by the military police

 3     in relation to his subordinate, the commander should check on what steps

 4     are being taken with the higher -- with his superior officer in the

 5     military police hierarchy, or, rather, with the superior officer of the

 6     military police, and, if so, he should seek to be received and discuss

 7     the matter with the military prosecutor on the matter.

 8             At any rate, throughout the time, or at least initially, he

 9     should secure all the evidence and facts in order to enable the

10     prosecution structures to deal with the case as best they can.

11        Q.   Thank you.

12             MS. GUSTAFSON:  If we could have D1631 brought up on the screen.

13        Q.   And I'd like to move now, Mr. Bajic, to another topic, which is

14     the memo or the list, I guess, that you provided to the -- your office

15     provided to the Gotovina Defence relating to the status of a number of

16     alleged killing incidents.

17             And there's no cover memo or anything to this list so I'd just

18     like to ask you if I'm correct in my understanding that you were provided

19     with the list of 337 alleged killing victims listed in the clarification

20     of the indictment to this case.  Is that -- and you were asked to provide

21     information in the possession of the state attorney on any investigation

22     or prosecution into each of these incidents.

23             Is that more or less what you were asked to do here?

24        A.   I'm not quite clear on your question.  You have to explain what

25     it is that you're referring to.

Page 20836

 1             Are you referring to the data contained in the table; or are you

 2     speaking in general terms?

 3        Q.   I'm asking, yeah, what you were asked to do specifically in

 4     creating this table because the numbers in the chart correspond to the

 5     numbers in the clarification to the indictment in this case, and there

 6     are a total of 337 individuals listed in that clarification.

 7             Were you provided with that list of 337 individuals?

 8        A.   I can't remember at this time.  I would have to look at both the

 9     query and the report.  We did as we normally dealt with these matters,

10     both when we received requests from the Defence or the Prosecution.  I

11     suppose we received this list of injured parties and then we checked the

12     Prosecution archives against the information and then dealt with the

13     matter.  But I would have to check precisely to see whether these are the

14     documents that I have in mind.

15        Q.   I'm just wondering, because the -- there are 88 victims or

16     individuals listed in this chart and they're not, as you can see, they

17     have numbers that start with 3, 5, 6, 7, but they are not sequential

18     throughout the chart.  And I'm wondering if you were provided with a

19     larger list of names and that these were the 88 that you were able to

20     find information about an investigation or prosecution on.

21             Can you answer that?

22        A.   Unfortunately, I cannot, because I don't have information on the

23     matter.  Certain individuals in my office did the job, and I can't

24     explain why the sequential numbers were written as they were.

25             What should be done in this case is to locate the request and

Page 20837

 1     everything else that was connected to that file.

 2        Q.   Okay.  And if we look at the first entry, the case file number

 3     says KN-DO-5/07.  Does that entry indicate that a case file into this

 4     incident was opened in 2007?

 5        A.   Yes.

 6        Q.   And I take it that the same numbering system applies throughout

 7     the entries in this chart, whereby the last two digits of the case file

 8     indicate that -- the date that the case file was opened; is that right?

 9        A.   Yes.

10             MS. GUSTAFSON:  If we could look at entry number 7, Sava Babic,

11     which is at the bottom of this page.

12        Q.   This chart indicates that Mario Dukic was convicted for murder in

13     relation to this incident.  And in connection with that case, I'd like to

14     look at 65 ter 7378, which is the case under tab 5, which I think you

15     have already located in the bundle you have.

16             The first document here is a judgement of the Split Military

17     Court.  And if we look at the first page lower down in the B/C/S and the

18     bottom of the English, and moving on to the second page in the English,

19     this indicates that the accused Mario Dukic a member of the 134th Home

20     Guard Regiment is convicted for the killing of Petar Botar in Kolarina

21     and sentenced to six years imprisonment.

22             And if we go to the next page in English and the next page in the

23     B/C/S as well.  And if we move -- sorry.  We can see that in the English

24     and moving on to the next page in the B/C/S that the accused Mario Dukic

25     as well as the other two co-accused are acquitted for the murder of

Page 20838

 1     Sava Babic.

 2             And if we can go to page 19 in the B/C/S and page 28 in the

 3     English, this is a later judgement of the Zadar County Court that

 4     confirmed these verdicts; namely the conviction of Mario Dukic for the

 5     killing of Petar Botar, as well as the acquittal of the other two accused

 6     for the murder of Sava Babic; is that right?  [Microphone not activated]

 7        A.   Yes.

 8        Q.   So where the chart indicated that Mario Dukic had been convicted

 9     for the murder of Sava Babic that's not quite correct, I take it.  It

10     should have been noted that he was convicted for the murder of

11     Petar Botar but acquitted for the murder of Sava Babic.

12             MS. GUSTAFSON:  If could I tender this case file 65 ter 7378,

13     please.

14             THE WITNESS: [Interpretation] Correct.

15             JUDGE ORIE:  Mr. Misetic.

16             MR. MISETIC:  No objection.

17             JUDGE ORIE:  Mr. Registrar.

18             THE REGISTRAR:  Sorry for the interruption.  Your Honours, that

19     will become Exhibit P2611.

20             JUDGE ORIE:  P2611 is admitted into evidence.

21             MS. GUSTAFSON:  And if we could go now to 65 ter 7377.

22        Q.   And this is the case that's under tab 4 in your bundle,

23     Mr. Bajic.  And this case relates to entry number 107 on the chart, which

24     is the victim by the name of Manda Tizma [phoen].  And the entry states

25     that the county court in Sibenik and the Supreme Court of the Republic of

Page 20839

 1     Croatia found that the accused Zeljko Sunjerga guilty for this killing

 2     and convicted him to a sentence of four years and 11 months.

 3             MS. GUSTAFSON:  And if we go to page 8 of the English and page 7

 4     of the B/C/S.

 5        Q.   I'd just like to confirm with you, Mr. Bajic, that this is the

 6     judgement of the Supreme Court of Croatia which did, indeed, convict

 7     Zeljko Sunjerga, who was at the time of the killing a member of the 15th

 8     Home Guard Regiment for this incident; is that right?

 9        A.   Yes, that's correct.

10             MS. GUSTAFSON:  If could I tender this document, please.

11             MR. MISETIC:  No objection.

12             JUDGE ORIE:  Mr. Registrar.

13             THE REGISTRAR:  Your Honours, that will become Exhibit P2612.

14             JUDGE ORIE:  And is admitted into evidence.

15             MS. GUSTAFSON:  Your Honour, I'm about to move to another topic,

16     so if it suits the Court, perhaps we can take a break now.

17             JUDGE ORIE:  Yes.  We will first have a break of 25 minutes,

18     which means that we will resume at ten minutes to 11.00.

19                           --- Recess taken at 10.26 a.m.

20                           --- On resuming at 11.06 a.m.

21             JUDGE ORIE:  Before we continue, Ms. Gustafson, the Chamber would

22     like to inform the parties about a decision taken on the application for

23     eleven 92 bis statements to be admitted into evidence.  The reasons will

24     follow, but in order to expedite matters, the Chamber grants the request

25     by the Defence to call the four out of the 11 witnesses for

Page 20840

 1     cross-examination, but the Chamber decided that, proprio motu, that we'll

 2     hear the cross-examination, the testimony given in cross-examination by

 3     those witnesses through videolink, limited time.  The -- there will be

 4     limited time.  We'd like to hear the testimony of those four witnesses in

 5     cross-examination on one day, just in a short sequence of, perhaps, 30 or

 6     40 minutes.  That's still to be determined.  The Chamber will then decide

 7     on all 11 statements, whether or not to admit them into evidence.

 8             The Chamber expects that there's no further need for proofing

 9     these witnesses prior to them being examined, to them being

10     cross-examining and if the parties consider that there would be any

11     reason to further proof those witnesses, then the parties are invited,

12     first, to inform the Chamber.  The Chamber will then consider those

13     reasons and see whether or not any orders should be issued in relation to

14     that matter.

15             That is -- one second, please.

16                           [Trial Chamber and Legal Officer confer]

17             JUDGE ORIE:  Yes, of course, I misspoke where I said that the

18     request for cross-examination was a Defence request.  It was a

19     Prosecution request.  That's the risk of doing it without a written text

20     before me.

21             Is this clear?  The reason why we're giving this decision at this

22     moment is because it may take some time for the -- for the Defence and

23     the Registry to prepare for the cross-examination, and to have the

24     assistance of the victims and witness sections to get the witnesses at

25     the right place at the right time.

Page 20841

 1             If it causes any further practical problems, you're invited,

 2     first, to inform the Registry, and, if need be, there will be

 3     communication with the Chamber.

 4             Any questions in relation to this decision which, of course,

 5     will -- reasons will be given at a later stage.

 6             Then, Mr. Bajic, I apologise for -- well, not for wasting your

 7     time at least because you could have had a longer break and not be

 8     bothered by these kind of matters, although you're certainly familiar

 9     with the possibility that this happens now and then in courtrooms.

10             Ms. Gustafson, are you ready to continue the cross-examination?

11             MS. GUSTAFSON:  Yes, Your Honour.  Thank you.

12             JUDGE ORIE:  Please do so.

13             MS. GUSTAFSON:

14        Q.   Mr. Bajic, I'd like to move to another topic, but, pardon me,

15     just before I do that, you stated earlier that you couldn't remember the

16     exact request you received that caused your office to create the chart we

17     were looking at of investigations and prosecutions into individual

18     alleged killing incidents.

19             And I'm wondering if you would be willing to provide that request

20     to the Prosecution so that we could -- and the parties and the Court, so

21     we could better understand the basis for your chart.  Would that be

22     possible?

23        A.   Absolutely.

24        Q.   Thank you.  Yesterday you were asked to describe factors that

25     hindered the ability of the Croatian state authorities to investigate or

Page 20842

 1     prosecute the killing incidents listed in the clarification to the

 2     indictment in this case, and you described various problems such as

 3     witnesses or suspects being in other countries and weak cooperation with

 4     police and prosecuting bodies in those countries in the past.

 5             Now, the Chamber has received evidence that after Operation Storm

 6     a system of sanitation was set up and implemented, involving members of

 7     the MUP and HV, whereby corpses that were discovered in the liberated

 8     territory were collected by sanitation teams and buried in cemeteries,

 9     for the most part without an on-site investigation being conducted or any

10     criminal report being filed.

11             And yesterday you mentioned the 2001 exhumation at the Knin

12     cemetery where many of these victims were buried.  So I do understand

13     that you are now aware of the existence of this sanitation system, even

14     if you didn't know about it at the time?

15        A.   Yes.  This is what I learned after those disinterments started.

16     This is what I learned subsequently.  I repeat again, I did not work in

17     that area at that time.

18             MR. MISETIC:  Just, Mr. President --

19             JUDGE ORIE:  Mr. Misetic.

20             MR. MISETIC:  I think the question was unclear and so the answer

21     is unclear.

22             Was he aware of this sanitation system.  I'm not sure if the

23     witness now says he is aware of how sanitation was carried out or he is

24     aware that bodies were buried and there was an exhumation in 2001.

25             JUDGE ORIE:  Ms. Gustafson, could you further explore what

Page 20843

 1     exactly you were meaning and whether that is the same as the witness

 2     means when he is talking about the sanitation system.

 3             MS. GUSTAFSON:

 4        Q.   Mr. Bajic, do I understand correctly that you now understand that

 5     there was a sanitation system implemented after Operation Storm in the

 6     manner I described?

 7        A.   Yes, of course, now, I learned of that subsequently.  First

 8     information I received was after this major exhumation in Knin in 2001.

 9        Q.   And the fact that many of these individuals were simply buried

10     without an on-site investigation being carried out or a criminal report

11     being filed, that was another -- that is another quite significant factor

12     that has delayed the investigation and prosecution of these incidents; is

13     that right?

14        A.   I concur.  Because only after 2001 or, better said, 2004, when

15     first results of forensics examinations in that area become known, we

16     determined the identity of 128 persons after whom 104 were determined to

17     be killed at close range; 75 of them being killed around the time of the

18     4th, 5th, 6th, 7th August 1995 and the remainder of them were killed in

19     the subsequent 30 days.

20             This is what I remember from those documents from those case

21     files.

22             And on the basis of those examinations concerning the

23     exhumations, we use such materials in the cases that are ongoing in the

24     area of Sibenik and Zadar.

25        Q.   Thank you.

Page 20844

 1             MS. GUSTAFSON:  If we could move now to 65 ter 2273, please.

 2        Q.   Mr. Bajic, this is a report from the HINA news agency from the

 3     8th of February, 2007.

 4             MS. GUSTAFSON:  And if we move down the page in the English,

 5     there's a remark that is attributed to you.  And in the third-last

 6     paragraph it says:

 7             "He," and this is referring to you, "said that since 2001,

 8     authorities have taken a more serious approach to investigating crimes

 9     committed by members of the Croatian army and the police, adding that

10     this was important to the credibility of Croatia's judiciary."

11             And then in the next paragraph it says, Bajic said that:

12             "Fair and legal criminal proceedings could contribute to

13     establishing the truth and help historians to give a final judgement."

14             First, I'd like to ask you if you recall making that statement

15     and if it accurately reflect what is you said.

16        A.   Yes.  It was my speech at a conference in 2007 at the Sheraton

17     Hotel, if I recall it correctly, attended by the participants whose words

18     are reflected here.  I agree with my statements in this press release

19     except for the misquoted figures.  If I may explain that, it may be

20     useful for you.

21             I know that this was so irrespective of what is written here.  Up

22     to 2002, we had registered some 4.000 people reported in the criminal

23     justice system, not prosecuted but reported.  Most of those cases were

24     tried in absentia, even in some cases there were indictments.  In 2002, I

25     issued an instruction to all my public prosecutors to undertake a review

Page 20845

 1     of the cases dating from 1991 onwards, because I thought that a large

 2     number of cases were not processed as per the standards which are now

 3     obtaining in Croatian and international judiciary.  Many people were

 4     processed for war crimes, although, based on the elements of the criminal

 5     offence, pursuant to Croatian law, those criminal offences were more of a

 6     character of armed rebellion, Croatia against the state, et cetera.

 7             So to cut a long story short, from 2001 to date, out of the total

 8     of slightly less than 4.000 persons, we have 1100 people prosecuted, the

 9     others, the other cases were dropped or abandoned or those criminal

10     offences were re-qualified.

11             So expect for those figures stated here, everything else reported

12     here is correct.

13        Q.   That you.  Just to clarify the record, you're clarifying the

14     figures in the paragraph above the ones that I read out; is it -- that's

15     correct, is it not?

16        A.   Yes.  Yes.

17             JUDGE ORIE:  Ms. Gustafson, I could seek some clarification on

18     the last answer.

19             You were talking about trials in absentia.  Were they mainly

20     conducted against Croat, Croatian defendants or -- Croat defendants or

21     Serb defendants?

22             THE WITNESS: [Interpretation] Trials in absentia used to be

23     conducted in Croatia until a couple of years ago when up to a point when

24     I, as a prosecutor general, issued an instruction to my prosecutors to

25     object to trials in absentia for the well-known reasons to all.

Page 20846

 1             Those proceedings were conducted mainly against the members of

 2     other armies.  We did not keep records of their ethnic affiliations.

 3     But mainly these were members of the enemy combatants and mainly citizens

 4     of Serb nationality.

 5             JUDGE ORIE:  Thank you.

 6             Please proceed, Ms. Gustafson.

 7             MS. GUSTAFSON:  Thank you.

 8        Q.   And your remark about authorities since 2001 taking a more

 9     serious approach to investigating crimes committed by members of the

10     Croatian army and the police, would that include crimes committed in the

11     aftermath of Operation Storm?

12        A.   Yes.

13             MS. GUSTAFSON:  Could we -- oh, could I tender that document,

14     please.

15             MR. MISETIC:  No objection.

16             JUDGE ORIE:  Mr. Registrar.

17             THE REGISTRAR:  Your Honours, that will become Exhibit P2613.

18             JUDGE ORIE:  P2613 is admitted into evidence.

19             MS. GUSTAFSON:  And if we could go now to 65 ter 4461, please.

20        Q.   Mr. Bajic, these are the minutes of a meeting -- the meeting of

21     the 33rd Session of the council for cooperation with the ICTY.  It was

22     held on the 6th of November, 1998.

23             MS. GUSTAFSON:  If we could scroll down in the English and then

24     move to the next page in the English --

25        Q.   We can see at the top of the English page there that this was

Page 20847

 1     attended by a number of government -- Croatian government ministers and

 2     other senior officials in the Croatian government.

 3             MS. GUSTAFSON:  And if we go to the -- look at the bottom of the

 4     page in the B/C/S and move down in the English as well, we can see

 5     there's one agenda item, which is:

 6             "Defining the position of the Republic of Croatia on the proposal

 7     made by Attorney Rivkin in respect to the strategy of appearing before

 8     the MKS ICTY, in connection with the Oluja operation."

 9             And if we could go to the next page in the B/C/S and also the

10     next page in the English.  Participants discuss a -- or a number of

11     proposals are discussed in relation to this strategy such as filing a

12     case before the International Court of Justice against the FRY.  And we

13     see Dr. Granic speaks in the middle of the page, at the time the ministry

14     of foreign affairs.  He starts by saying that in his opinion, all the

15     proposals seemed bad from a political point of view.

16             And at the bottom of this paragraph he says:

17             "Second of all, in defining the Oluja operation, we, ourselves,

18     called it a military and police operation.  So it was a planned

19     operation, and it was executed as planned.  Our shortcomings surfaced

20     subsequently, after the Oluja operation, when we have not processed

21     possible perpetrators of war crimes."

22             And if we could go to the next page in the English and the bottom

23     of the page in the B/C/S.  And this is Mr. Separovic speaking who, at the

24     time, was the director of the HIS.  And he says that he "fully agreed

25     with Dr. Granic that filing the case would not stop the Tribunal from

Page 20848

 1     investigating the Oluja operation ..."

 2             And if we move down the page in the English and go to the next

 3     page in the B/C/S where Mr. Penic speaks and he is, at the time, the

 4     minister of the interior.  At the beginning of the second sentence he

 5     says:

 6             "Mr. Penic added that he deems that we are to blame for not

 7     penalising those who commit the crimes in the aftermath of the Oluja, but

 8     that the crimes were committed only by individuals or small groups of

 9     people.  We must not forget that the suffering caused to the Republic of

10     Croatia was a planned and organised crime committed by a state."

11             And, finally, if we could go to page 5 of the English and the

12     bottom of that same page in the B/C/S.  These are the conclusions of

13     Dr. Ramljak, who was then the minister of justice.  And under point 2, it

14     says:

15             "Events that occurred after the Oluja operation.  It seems that

16     it is necessary to reassess the strategy taken two to three years ago

17     related to not processing the events and crimes committed in the

18     aftermath of the operation, but we need to keep in mind that the council

19     for cooperation with ICTY and MKS is not obliged to discuss this issue."

20        Q.   Now, you've -- you've stated that the Croatian authorities became

21     more serious about prosecuting crimes committed after Operation Storm

22     after 2001, and here, in November 1998, we have senior members of the

23     Croatian government discussing the fact that crimes committed after

24     Operation Storm have not been processed, and the minister of justice

25     concluded that they should reassess the strategy related to not

Page 20849

 1     processing the events and crimes committed in the aftermath of Operation

 2     Storm.

 3             And my question is:  Would you agree that under the regime of

 4     former President Tudjman that there was a reluctance on the part of the

 5     political leadership to investigate or process suspected HV crimes

 6     committed after Operation Storm?

 7             MR. MISETIC:  I'm going objective on foundational grounds.  Is it

 8     a general question or is she asking him specifically about a comment in

 9     the document?  In that case, I would ask for foundation as to what this

10     witness knows about what the comment refers to.

11             JUDGE ORIE:  Ms. Gustafson.

12             MS. GUSTAFSON:  It's a general question, Your Honour, and I --

13             JUDGE ORIE:  General question.

14             MS. GUSTAFSON:  -- I think the foundation has been laid from the

15     witness's position and remarks on the nature of these investigations.

16             JUDGE ORIE:  Yes, I think, as a matter of fact, it was only, as

17     Mr. Misetic said, in that case I would ask for a foundation that if it is

18     not a general question.  Let's first hear the answer of the witness.

19             MR. MISETIC:  Just so it is on the record, he has been shown

20     documents but the question is not related to the documents that he's been

21     shown.  In other words, not --

22             JUDGE ORIE:  Not necessarily distinct from but not focussing on

23     documents.

24             MR. MISETIC:  On it's document, yes.

25             JUDGE ORIE:  Could you please repeat the question, Ms. Gustafson,

Page 20850

 1     so that we're ...

 2             MS. GUSTAFSON:  Yes.

 3        Q.   Mr. Bajic, my question was:  Would you agree that under the

 4     regime of former President Tudjman, there was a reluctance on the part of

 5     the political leadership to investigate or process suspected HV crimes

 6     committed after Operation Storm?

 7        A.   With respect to this question, I can say as follows:  First of

 8     all, we have to go back to the fact concerning my job during the

 9     Operation Storm and later up to 2001 and 2002.  At the time in question,

10     I was deputy military prosecutor until the end of 1996.  After that, I

11     was deputy county prosecutor in Split.  In 2000, I was county prosecutor

12     in Split; and in 2002, I become prosecutor general of the Republic of

13     Croatia.

14             When I say Croatian authorities decided this or that, well, when

15     I came to the post of prosecutor general, I conducted an analysis of all

16     the cases, together with my associates.  I analysed what has been done up

17     to that point.  In respect to that, I think that in many cases things

18     took a wrong turn.  I was against trials in absentia.  I believe that in

19     many cases indictments were too wide, and in many cases crimes have not

20     been prosecuted, and I still believe that.  Based on that, I issued

21     written instructions and there's a written record of that and the Court

22     can have them.  Those instructions were to public prosecutors on how to

23     review the present cases or the cases at the time and -- but also to seek

24     from police anything of evidence for the cases that had not been

25     processed.  As a prosecutor, I can talk about that.  I cannot offer any

Page 20851

 1     political assessment on the opinions and positions taken by some member

 2     of the political leadership, because I do not have any immediate

 3     knowledge of that other than what I read off the screen right now.

 4        Q.   Thank you.  And do you know why the Croatian authorities waited

 5     until 2001, six years after the events in question, to begin exhuming

 6     individuals from the Knin cemetery in a situation where the MUP at least

 7     knew where these people were buried and the fact that no on-site

 8     investigation had been carried out because it was, in fact, MUP officials

 9     involved in their burial.

10             Do you know why it took until 2001 to begin exhuming these bodies

11     and carrying out autopsies?

12        A.   I don't know.  I don't know.  What I know, since I became

13     prosecutor general that on several occasions I launched initiatives to

14     the minister of police and other participants who could jointly collect

15     facts relevant for detection of perpetrators of war crimes to step up

16     their efforts to establish departments for war crimes, to adopt team-work

17     approach, to investigate at the levels of county prosecutors offices in

18     all counties, particularly those in the areas of Vukovar, Osijek, Zadar,

19     and Sibenik.

20        Q.   Thank you.  You mentioned that this time delay before the

21     exhumations were carried out was a factor that has affected the ability

22     to investigate and prosecute these cases.  On top of that simple delay of

23     time, the fact that these bodies were in the ground decomposing for six

24     years, that's a further factor that has hindered the investigations; is

25     that right?  The fact that the bodies had been decomposing for six years

Page 20852

 1     and evidence had -- potential forensic evidence had been lost due to

 2     decomposition.

 3             Would you agree with that?

 4        A.   That's correct.  The passage of time, as is known by everybody in

 5     this courtroom, plays into the hand of the perpetrator and hinders those

 6     who want to identify the perpetrators and prosecute criminal offences.

 7     Unfortunately, this is true, yes.

 8        Q.   Thank you, Mr. Bajic.  I have no further questions.

 9             MS. GUSTAFSON:  At this time, I would like to tender the charts

10     that were circulated earlier.  I believe we have agreement with the

11     Gotovina Defence, which are 65 ter 7381 and 7382.

12             MR. MISETIC:  That's correct, Your Honour.

13             JUDGE ORIE:  Mr. Registrar.

14             THE REGISTRAR:  Your Honours, 65 ter number 7381 becomes Exhibit

15     P2614; and 65 ter number 7382 will become Exhibit P2615.

16             JUDGE ORIE:  The Chamber is usually not aware of 65 ter numbers.

17     We're talking about which charts exactly?

18             MS. GUSTAFSON:  I believe they were sent to the Chamber this

19     morning by e-mail.

20             JUDGE ORIE:  This morning by e-mail.  Let me check.

21             Yes, it is kind of an extract, and agreed upon between the

22     parties.

23             P2614 and P2615 are admitted into evidence.

24             Mr. Misetic, any reason to re-examine the witness?

25             MR. MISETIC:  Yes, Mr. President.

Page 20853

 1             JUDGE ORIE:  Yes.

 2                           Re-examination by Mr. Misetic:

 3        Q.   Good morning again, Mr. Bajic.  Just I have a few questions for

 4     you to clarify a few matters.

 5             You've testified on questioning by the Prosecutor about the

 6     requirement -- you were asked about whether a commander has a duty to

 7     file a criminal report with the Military Prosecutor's Office.

 8             And my question to you is:  If the commander informs the military

 9     police of a criminal act, has he fulfilled his obligations under the

10     Criminal Procedure Code?

11        A.   Criminal reports are primarily sent and submitted to law

12     enforcement organisations, be it civilian or military police.  I answered

13     this question in this way today, if a commander reports something to

14     military police, he has discharged his obligation pursuant to the

15     Criminal Procedure Act, particularly if concurrently with that he has

16     secured the evidence, provided all the information to the detection and

17     prosecution authorities which are necessary to successfully the case.

18        Q.   Well, but the first -- let me ask you, under the military

19     criminal justice system, which institution has the primary responsibility

20     of detecting crime within the military and securing relevant evidence?

21             MS. GUSTAFSON:  Your Honour, this topic was discussed at length

22     in direct examination.  I don't see how it arises from the

23     cross-examination.

24             JUDGE ORIE:  Mr. Misetic.

25             MR. MISETIC:  If it is clear and the Prosecution agrees with what

Page 20854

 1     the witness just answered, then I won't proceed further.  If it is still

 2     this dispute, I think it needs to be clarified.

 3             JUDGE ORIE:  I think as a matter of fact, the matter was dealt

 4     with in examination-in-chief, then Ms. Gustafson asked questions to the

 5     witness on what a commander would have to do if he had knowledge that the

 6     military police, although aware of the crime, did not -- well, let's say

 7     seriously investigate the matter or investigate the matter, and the

 8     answer of the witness was that under those circumstances, a commander had

 9     to either seek a hierarchical higher person to trigger such an

10     investigation, and if this would not result in an investigation, that,

11     under those circumstances, he would have to address the military

12     prosecutor.

13             I see the witness is nodding yes.  This summarises the more

14     detailed --

15             MR. MISETIC:  That was not issue I was dealing with.  I was

16     actually dealing with his testimony from yesterday, not today, where he

17     talked about filing of criminal reports with the Military Prosecutor's

18     Office, and I will pull it up right now, Mr. President.

19             JUDGE ORIE:  Then we come to the objection of Ms. Gustafson.  How

20     does this arise from cross-examination?  You now refer to what he

21     testified yesterday.

22             MR. MISETIC:  In cross-examination.

23             JUDGE ORIE:  In -- the first very limited part.

24             MR. MISETIC:  Yes.

25             JUDGE ORIE:  Okay.

Page 20855

 1             MR. MISETIC:

 2        Q.   So, again, Mr. Bajic, the question was:  Who has the primary

 3     responsibility under the military criminal justice system at the time for

 4     uncovering crime?

 5             JUDGE ORIE:  Mr. Misetic, could you give us the reference, the

 6     page reference of yesterday's --

 7             MR. MISETIC:  Yes.

 8             JUDGE ORIE:  Or a few words which allows us to use WordWheel.

 9             MR. MISETIC:  Yes, I will have it.  Just one moment,

10     Mr. President.

11             Page 20798, beginning at line 26 [sic].

12             JUDGE ORIE:  Yes.  Now, my problem is that page 20798 has 25

13     lines.

14             MR. MISETIC:  All right.

15             JUDGE ORIE:  That's at least my ...

16             MR. MISETIC:  I'll give you the sentence then.  The question was:

17             "And more generally if a military commander ..."  --

18             JUDGE ORIE:  Generally.  16 ... same page line 16?

19             MR. MISETIC:  Okay.  I apologise for the error.

20             JUDGE ORIE:  "And more generally if a military court ..."

21             That's on line 16.

22             MR. MISETIC:  Yes.

23             JUDGE ORIE:  Okay.  Please proceed.

24             MR. MISETIC:

25        Q.   My question is again:  Who has the fundamental responsibility

Page 20856

 1     under the military criminal justice system for uncovering crime?

 2        A.   The forces of law enforcement, which include the civilian and

 3     military police.

 4        Q.   Do you know whether, once a commander forwarded information to

 5     the military police that a crime was committed by an unknown member of

 6     the HV, are you aware of whether, as a matter of practice, the military

 7     police ever reported back to the commander about the results of the

 8     investigation?

 9        A.   I'm not aware of that, although I believe that, under the rules

10     governing the profession, they should have reported back.  They should

11     have forwarded the criminal report to the Military Prosecutor's Office.

12        Q.   No, no.  Maybe -- I just want to make sure we're not talking past

13     each other.  My question wasn't whether under the rules they should have

14     reported to the Military Prosecutor's Office.  The question was:  Would

15     they report back to the commander about what they had done in the

16     investigation of the criminal offence; and if your answer is yes, you've

17     cited to rules governing the profession, can you tell us what rules

18     specifically you're referring to?

19        A.   I said that I was not aware of what the military police did, in

20     relation to those who had filed a report or given notice to it.  But

21     under these standards, it is only natural that you should report back to

22     the party submitting a report about what was done upon the report, just

23     as the prosecutor's office, upon receiving a report, would inform the

24     reporting party on what was done.  I'm drawing a parallel there.

25        Q.   Can you tell us -- you're referring to the standards and this is

Page 20857

 1     at page 48, line 17 of the transcript.  What standards are you referring

 2     to?  Are you referring to specific written standards or are you speaking

 3     about general practices?

 4        A.   I'm speaking about the general practice above all, because I

 5     don't know what the rules governing the military police specifically say

 6     in relation to this procedure.

 7        Q.   Okay.  Then my question to you is:  Do you believe you are very

 8     familiar with the general practice of the military police in 1995 with

 9     respect to whom it was reporting information to?

10        A.   No.

11        Q.   Now, you were asked a question about commanders conducting

12     investigations parallel with a criminal investigation.  And I wanted to

13     just --

14             MS. GUSTAFSON:  I would just like to clarify that that was

15     commanders conducting disciplinary investigations, just so there is no

16     confusion.  Thank you.

17             MR. MISETIC:

18        Q.   Commanders conducting a disciplinary investigation parallel with

19     a criminal investigation.

20             My question to you is:  Did you understand that a commander would

21     conduct or could conduct a -- an investigation into a criminal act under

22     the umbrella of a disciplinary investigation at the same time that the

23     military police and the Military Prosecutor's Office were conducting

24     their own investigation into that criminal act?

25        A.   Theoretically speaking, yes.

Page 20858

 1        Q.   What would the disciplinary investigation -- can you explain,

 2     when you say "Theoretically speaking, yes," as a matter of practice, was

 3     that the practice at the time?

 4        A.   I must admit that I don't know what the practice was like.  But

 5     if a criminal report was filed for a serious crime, then it was a

 6     superfluous matter to engage in a disciplinary procedure as well, but, of

 7     course, it depended on the commander and the commander's inclination

 8     toward investigations.

 9        Q.   Now, you were asked -- you were shown some documents from a court

10     file, and it related to individuals in the Golubic area who were arrested

11     by the military police and prosecuted for looting.  And you were asked

12     the question, first, whether you believed that looting was to some extent

13     permitted or accepted in the HV.  And my question to you is if could you

14     explain that your answer to that question if, in fact, the military

15     police arrested these individuals and were put on trial, can you further

16     explain your answer to that question?

17             MS. GUSTAFSON:  If I could just clarify again.  The question was

18     permitted or accepted within HV units, not within the HV generally.

19             JUDGE ORIE:  Yes.

20             MR. MISETIC:  And military police, I believe, the question said.

21             JUDGE ORIE:  Let's check what we believe what the question says.

22     Could you take us to the relevant --

23             MR. MISETIC:  I will take it, but I'm certain that Ms. Gustafson

24     said by letting members --

25             JUDGE ORIE:  Well, let's -- let's not pronounce ourselves on what

Page 20859

 1     you certainly think she said.  Let's first look at the transcript and if

 2     there's any reason to -- for doubt whether the transcript expresses

 3     exactly what Ms. Gustafson said, we can verify that, rather than to, in

 4     the presence of the witness, tell what your recollection is, Mr. Misetic.

 5             MR. MISETIC:  This is now at page 15, beginning at line 17.

 6             JUDGE ORIE:  One second, please.  15/17.

 7             One second.

 8             MS. GUSTAFSON:  The question begins at line 25 of page 15.

 9             MR. MISETIC:  No, the question begins at line 17.

10             JUDGE ORIE:  One second, one second.  I will slowly read to the

11     witness the portion of the transcript you want to draw his attention to.

12             MR. MISETIC:  It starts then -- the specific portion is the

13     reference to the 72nd Military Police Battalion which is part of the

14     question, which is within line 21.

15             MS. GUSTAFSON:  Your Honour, that was a reference, a specific

16     reference to an individual who is -- who it was under indictment and

17     became a member of the 72nd Military Police Battalion.  That was part of

18     the question that related to a specific fact in the judgement.  The

19     actual question begins at line 25.

20             JUDGE ORIE:  Let's just -- the question is introduced by a

21     reference to the portions of the files read to the witness.  I'll just

22     read both the introduction and then the question.

23             Mr. Bajic, I read from the transcript of this morning the

24     following.  Ms. Gustafson said:

25             "Now, having read these files and based on your experience as a

Page 20860

 1     prosecutor and as a military prosecutor at the time of these events,

 2     would you agree that these cases contain indications, and I'm referring

 3     specifically to indications such as large group of HV soldiers loading

 4     looted items onto trucks in Knin, a soldier under indictment for theft

 5     becoming a member of the 72nd Military Police Battalion, and a large

 6     group of conscripts loading looted items onto a truck in front of their

 7     unit command.

 8             Do these indications indicate that, to you, looting was, to some

 9     extent, accepted or permitted within HV units at the time."

10             That was the question which was put to you and you started your

11     answer by saying:

12             "I absolutely agree with your conclusion."

13             Mr. Misetic wants to put a question to you in relation to this

14     question and answer.

15             Mr. Misetic.

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

17        Q.   Mr. Bajic, my question is -- that was your answer.  In light of

18     the fact though that this information comes from a situation where these

19     perpetrators were arrested by the military police and put on trial for

20     it, can you explain why you would absolutely agree that you -- looting

21     was, to some extent, accepted or permitted within the HV units at the

22     time?

23        A.   Because, from the case files that were presented to me, these

24     were cases 1, 2, 3, that's how they were designated when I got them.  It

25     follows undoubtedly from them that the theft or whatever you want to term

Page 20861

 1     it, by members of the Croatian army in the civilian buildings in the

 2     area, was widespread and this is something that follows from the

 3     indictments.

 4             It is true that the military police, in these very three cases,

 5     did react and filed criminal reports.  It is also true that these three

 6     cases saw the perpetrators processed and convicted.  However, the fact of

 7     the matter is that thefts like these, which were not processed and which

 8     we knew had happened, had been far more in numbers.  Such statements were

 9     made in, among others, judgements themselves.

10        Q.   Okay.  Well, then to follow up on this, you were also asked some

11     questions about the applicability of the amnesty law to these particular

12     cases, and you said in a response to a question by the Presiding Judge

13     that these crimes would not have been covered by the amnesty, because

14     they wouldn't have been considered connected with the war.  The judgement

15     came down in 1998.

16             I noted that the indictment alleged that the theft took place on

17     8th of September, 1995.  Are you aware of - and I don't believe it is

18     disputed in this case - what military operation involving units of the

19     Split Military District began on the 8th of September, 1995; and you are

20     aware where that military operation was taking place on that date?

21        A.   I'm not sure whether this was Operation Maestral or something

22     like that, that I heard from the media.  But this stems from my general

23     knowledge and not my knowledge in the capacity of a prosecutor.

24        Q.   If whatever these individuals were doing was connected with or

25     related to Operation Maestral, would it have fallen under the amnesty act

Page 20862

 1     and, therefore, would not have been prosecuted in 1998?

 2        A.   The Law on General Amnesty has been well explained by me, I

 3     believe.  Looting and theft cannot be connected with the war, and this is

 4     more than clear and I speak as a prosecutor now.  What is connected to

 5     the war as collateral event is something quite different, and cannot, in

 6     any way, be related to looting, and, therefore, cannot be subject to the

 7     Law on General Amnesty.  At least that is my view of the matter.

 8        Q.   I'll just check your answer.  It was interpreted as that you

 9     said -- I'm sorry, interpreted that this event cannot, in any way, be

10     related to ...

11             Related to what?

12        A.   To war operations.

13        Q.   Thank you.  Now, Mr. Bajic, you were asked questions about the

14     processing of crime, and one of the questions put to you was that there

15     were only five criminal reports filed in August and September 1995

16     against members of the HV and that chart is now Exhibit P2614.

17             MR. MISETIC:  Mr. Registrar, if we could have that on the screen,

18     please.

19             MS. GUSTAFSON:  Just to clarify, it was five criminal reports

20     filed in August and September against members of the HV for crimes

21     relevant to this indictment.

22             MR. MISETIC:  Correct.  That's correct.

23             JUDGE ORIE:  Please proceed.

24             MR. MISETIC:

25        Q.   Mr. Bajic, we will flip through some of these pages which I

Page 20863

 1     admittedly don't have in front of me.  For example, if we could go to

 2     page 8 in the English, please.  I think there is only an English,

 3     actually.

 4             Now, you'll see in the grey these are the entries that the

 5     Prosecution believes are relevant to the indictment.  The yellow ones

 6     are -- the grey entries, are those entries that relate to crimes

 7     committed in the liberated territories and in the specific municipalities

 8     which are the subject of this case.  But you should know that the entire

 9     liberated area in Sector South is not subject to the Prosecution's case.

10     The yellow entries indicate crimes perpetrated by HV members against --

11     I'm sorry.

12             MR. MISETIC:  Maybe I'm on the wrong page.  Let me -- I guess I

13     have to check with the Prosecution.  I apologise for speaking

14     mid-sentence.  I'm looking at a version that was circulated that has

15     entries 798 at the top in yellow, and I wondering whether the latest

16     version has been uploaded into e-court.

17             MS. GUSTAFSON:  We can check on that.  I -- I have to check.  I'm

18     sorry.  It just got uploaded, so I will check right now.

19             MR. MISETIC:

20        Q.   You'll have to take my word for it that, for example, entry 798

21     relates to a crime committed in the newly liberated area.  It is

22     Zelengrad, as you can see; but Zelengrad technically, although formally

23     occupied territory on the crimes committed by HV, and the crime is

24     against Serbs or Serb property doesn't technically fall within this

25     chart.

Page 20864

 1             So my first question -- and if we can scroll to another page.  If

 2     we can go to page 23, please.

 3             The grey area are, again, limited to the Prosecution's case in

 4     chief.  The two white areas appearing on your screen right now are also

 5     crimes committed in the newly liberated areas.  The question is:  The

 6     relevant reports, for example, looking at number 12.  Can you tell us the

 7     procedure -- the report, it is one report but it has five persons

 8     identified.  The reports themselves contain multi-perpetrators in many

 9     cases.  Is that consistent with your recollection of how the system

10     functioned?

11        A.   Yes.

12        Q.   Okay.

13        A.   If they are interconnected in terms of the manner of perpetration

14     then they would be in one report if they committed the crime together.

15        Q.   By my count, and I'm just asking you whether this is

16     consistent -- this chart --

17             JUDGE ORIE:  Mr. Misetic, I think your last question was more or

18     the less the obvious.  If under one number we have five names, then it

19     means that under that number five names are reported.

20             Now I take it that the witness has not calculated with him to

21     see -- isn't this a matter of evaluation of what we find here?  Because I

22     already understand that you would say that there were far more persons

23     reported or represented and that's a matter of one plus one makes two,

24     and five plus five makes ten.  Should we bother the witness with this

25     or ...

Page 20865

 1             MR. MISETIC:  I'm leading to the ultimate point, which is I'm

 2     going put the question that was put to him about a reluctance to

 3     prosecute and that was put, and I want to ask him.

 4             JUDGE ORIE:  Yes.  The witness said that he couldn't express

 5     himself on the reluctance to prosecute.  He said what he tell us what

 6     they did and he could not interpret acts or approaches or attitudes of

 7     the political leadership.

 8             MR. MISETIC:  I wasn't going to ask him about the political

 9     leadership.  I was asking him about his office limited to that.

10             JUDGE ORIE:  Yes, but, of course, there was no question about

11     reluctance to prosecuted within his office.

12             MR. MISETIC:  The question was:  Was there a reluctance to

13     prosecute among the Tudjman regime, and that would be directly relevant

14     to him.

15             JUDGE ORIE:  No, political leadership.

16             MR. MISETIC:  No.

17             JUDGE ORIE:  -- was specifically mentioned there, I think.

18             MR. MISETIC:  We can look at the question again.

19             This is at page 42, line 4.

20             JUDGE ORIE:  42, line 4.  One second please.

21             MR. MISETIC:  Sorry you're right, Mr. President.  It says

22     political leadership.  But ... as a technical matter, that reluctance

23     would have to play out because the question is:  Was there a reluctance

24     on the part of the political leadership to investigate or prosecute?

25             JUDGE ORIE:  And the witness said he could not tell us about what

Page 20866

 1     the political leadership and he then -- I certainly remember that.  He

 2     said what he did.  And, at the end, because I thought he was not

 3     answering the question he said:  "I could not comment on but I cannot

 4     offer any political assessment on the opinions or positions taken by some

 5     members of the political leadership."

 6             So the question was about reluctance in the political leadership

 7     and the witness said that he couldn't answer that question.

 8             MR. MISETIC:  Okay.  May I ask him then whether in working as a

 9     prosecutor he ever felt any reluctance by anyone who may have been in a

10     political position not to prosecute?  Because these events would say have

11     been prosecuted by him or the offices he was working in, and I would just

12     like to confirm that if such an allegation is going to be made at the end

13     that the person who would have had to feel that reluctance, whether he

14     felt it or didn't.

15             JUDGE ORIE:  Well, it was implicit in his answer, I would say

16     when he said that, but please correct me, Mr. Bajic, when I'm wrong.

17             I under understood your answer to be that you did your job the

18     way you thought you should do it and that you had no --

19             THE WITNESS: [Interpretation] Correct.

20             JUDGE ORIE:  -- no signs of reluctance from the political

21     leadership that reached you which you could comment on as far as whether

22     there was such reluctance, yes or no, and these questions were based

23     mainly on reading of this report of the meeting.

24             MR. MISETIC:  That's fine.  I will move on, Mr. President.

25             JUDGE ORIE:  Yes, thank you.

Page 20867

 1             THE WITNESS: [Interpretation] Correct.

 2             MR. MISETIC:

 3        Q.   Thank you, Mr. Bajic.  The next question is about the sanitation

 4     measures.  You were asked a few questions about that.  You've testified

 5     during your testimony here over the course of two days that you obviously

 6     are conducting examinations -- I'm sorry, investigations into these

 7     killing incidents.  On the issue of how sanitation measures were carried

 8     out, have you found that the -- or evidence that the way that bodies were

 9     buried in Operation Storm was intended to cover up crime?

10        A.   I think that I cannot answer the question in relation to this

11     specific issue, because the exhumations at Knin, which had to do with the

12     earlier sanitisation processes, all the general information about the

13     numbers of persons recovered there, the numbers of persons who were

14     identified in the meantime and the findings of the identification, I have

15     no additional information to what I just told you, save for the fact that

16     certain corpses were identified.  That's all the facts I am aware of.

17             MR. MISETIC:  I understand the confusion.

18             JUDGE ORIE:  Yes, but, Mr. Misetic --

19             Mr. Bajic -- the first question we have to put to Mr. Bajic in

20     this respect is:  Did you investigate the practice or system or

21     background of the sanitation that took place in 1995?

22             THE WITNESS: [Interpretation] No.

23             JUDGE ORIE:  Which means that if you do not find anything, if you

24     are not looking for something, to find out what happened, Mr. Misetic,

25     that --

Page 20868

 1             MR. MISETIC:  I understand your point, Mr. President.  That's why

 2     I had gotten up on my feet before when the question was posed and perhaps

 3     there is some confusion, and my computer is now down.

 4             JUDGE ORIE:  Of course, your question was highly suggestive to

 5     the extent that the focus of any investigation was not exclusively on

 6     trying to obtain evidence in relation to the human remains that were

 7     found but that it was also focussing on and investigating the way in

 8     which the sanitation was done in 1995, which, from what I understand from

 9     witness now, was not the case.

10             MR. MISETIC:  If I may just have one minute, Mr. President.

11     This is, again, I think discussed earlier today, and I just want to make

12     sure that I'm clear on the witness's position.  So if we could -- just

13     one second.

14             JUDGE ORIE:  If you find the relevant transcript passage, please

15     give us the page.

16             MR. MISETIC:  This is at page 34, beginning with my comment at

17     line 24.

18             JUDGE ORIE:  Let me try to cut matters short.

19             You told us that you learned subsequently when the exhumations

20     had started that people had been buried without on-site investigations

21     being conducted.  That's people were buried under what was called by

22     Ms. Gustafson as a sanitation system or perhaps a sanitation practice.

23             Now, you told us that you learned about that only at a later

24     stage.  What Mr. Misetic is exploring now is whether, on from that

25     moment, when you learned about the sanitation system, whether you

Page 20869

 1     explored and have drawn conclusions on why and how this sanitation system

 2     came into practice.

 3             Mr. Misetic, I think that's what you are trying to explore.

 4             MR. MISETIC:  Yes, Mr. President.

 5             JUDGE ORIE:  Now, the question, first of all, is:  Did you

 6     investigate, did you explore, did you reach any conclusions in respect of

 7     the way in which this sanitation system was created, developed,

 8     background, why it was done this way?  Did you explore that, did you make

 9     any findings in this respect?

10             THE WITNESS: [Interpretation] I personally have no knowledge

11     about that, any knowledge.  The country prosecutor's office of Sibenik is

12     seized of this case.  They took part in the exhumation and by reviewing

13     their case and gaining insight into it, I could have given you a specific

14     answer to all your questions.

15             JUDGE ORIE:  If they would have further explored that specific

16     aspect, but apparently the witness doesn't know, Mr. Misetic.

17             You may proceed.

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

19        Q.   On the subjects of exhumations, you were asked questions about

20     why exhumations began only in 2001.  Do you recall at whose request the

21     exhumations were done in 2001?

22        A.   I don't know that.

23        Q.   Were you involved in the exhumations in 2001?

24        A.   In 2001, I was with the Public Prosecutor's Office in Split.  The

25     exhumation was at Knin, which is part of the Sibenik Public Prosecutor's

Page 20870

 1     Office, which is outside of my jurisdiction which I'm trying repeatedly

 2     to explain.

 3        Q.   Do you know -- do you know why 2001 was the year that exhumations

 4     began?  What was the factual basis which caused exhumations to begin in

 5     2001?

 6             MS. GUSTAFSON:  The witness was already asked this question, and

 7     he said quite clearly that he didn't know.

 8             JUDGE ORIE:  Mr. Misetic is phrasing the question slightly

 9     differently because he would very much like to have the answer.

10             Well, you've heard the question now --

11             THE WITNESS: [Interpretation] [No interpretation]

12             JUDGE ORIE:  The answer is clear.  The witness says, I do not

13     know.

14             Please proceed.

15             MR. KEHOE:  Excuse me.

16                           [Defence counsel confer]

17             THE INTERPRETER:  Interpreter's note:  The witness said, I don't

18     know.

19             JUDGE ORIE:  Yes.  It is my mistake, not to wait for the

20     interpretation, but I'm afraid that this is the result of many, many

21     years in this Tribunal.

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

23        Q.   You were asked -- you were shown an article from HINA, which had

24     a quote from you, quoting you as saying that a more serious approach to

25     investigation began after 2001.  And I just wanted to ask you to explain

Page 20871

 1     the comment.  Was it a less serious approach prior to 2001?

 2        A.   In trying to provide an answer to this question, I said, after I

 3     came to the post of public prosecutor general of Croatia, I was of

 4     opinion that a serious review of all war crimes had to be done.  Those up

 5     to the point.  Analysing the type and number of cases, I established that

 6     in a certain segment the scope was too broad, that there was a large

 7     number of trials in absentia, and, on the other hand, that a large number

 8     of criminal offences had not been detected and processed; and for that

 9     reason I sought from all county prosecutors who were in charge of the

10     operations in the field to organise a system within their prosecutor's

11     offices, in such a way, to strengthen their departments dealing with war

12     crimes to coordinate their work with police and intelligence services,

13     and by doing so, try to obtain as much evidence as possible to enable

14     them to process those cases that had not been processed that far.

15             On the other hand, I also issued an instruction whereby trials in

16     absentia should not be allowed to happen from that point onwards and also

17     in the pending cases for them to reassess whether the indictments had

18     been drafted up to scratch, up to the standards that had been elevated on

19     the basis of knowledge, know-how, experience, information, to reassess

20     whether the criminal offences were really war crimes and not less serious

21     offences; and at the same time I was facing the facts that it was

22     exceptionally difficult to collect information about war crimes that had

23     occurred ten years prior to that date.  I launched an initiate to

24     strengthen institutional cooperation with other prosecutors general in

25     the region to facilitate the acquisition of evidence from other countries

Page 20872

 1     and evidence from the archives of this Tribunal.  All this is -- led to a

 2     fact that the number of earlier cases dropped from almost 4.000 to 1100

 3     and that, on the other hand, we launched a host of new cases and that we

 4     referred number of cases to other countries in the region, where people

 5     residing there were prosecuted.

 6        Q.   Thank you, Mr. Bajic, for your answers.

 7             MR. MISETIC:  Mr. President, I don't have any further questions.

 8             JUDGE ORIE:  Mr. Mikulicic, any further questions?

 9             MR. MIKULICIC:  No further questions, Your Honour.

10             JUDGE ORIE:  Ms. Gustafson, any further questions?  I also just

11     check as we usually do, whether my colleagues or whether I have any

12     questions.

13                           [Trial Chamber confers]

14             JUDGE ORIE:  Judge Kinis has one or more questions for you

15     Mr. Bajic.

16                           Questioned by the Court:

17             JUDGE KINIS:  Mr. Bajic, I wanted to ask you one question

18     regarding war booty because we had a lot of evidences that HV commanders

19     issued orders -- not orders or instructions which allowed to collect some

20     sort of war booty for military needs.

21             Did you ever receive any instruction which, in legal sense,

22     explained what war booty was?  During your business as a military

23     prosecutor?

24        A.   No.

25             JUDGE KINIS:  And did you distinguish these incidents where

Page 20873

 1     collection of home appliances, households were conducted in organised

 2     manner by militaries, and -- and separate such incidents and treated

 3     differently?

 4        A.   No, in the same manner.

 5             JUDGE KINIS:  Thank you.

 6             JUDGE ORIE:  Mr. Bajic, I -- I have one question in relation to

 7     the statement you gave to -- to the Gotovina Defence.

 8             You said in paragraph 4 that the military prosecutor, they wore

 9     uniforms but were, in fact, acting entirely within the system of the

10     public prosecutor.

11             What you say, at least that's how I understood it, they are not

12     soldiers but they were wearing military uniforms.  Did you wear a uniform

13     yourself?

14        A.   Yes, I did wear a uniform.

15             JUDGE ORIE:  What -- I mean, was this a fancy uniform or were you

16     a member some unit or -- I mean, could you choose your own insignia or

17     what -- could you explain to us what uniform you were wearing?

18        A.   Well, after the decrees were enacted at the end of 1991 on the

19     organising of the military justice system, the minister of defence, at

20     the proposal of the prosecutor general of Croatia, deployed the existing

21     deputy prosecutors from the existing prosecuting services or offices into

22     military prosecutor services.

23             And in 1992, on the 6th of February, I changed the label on my

24     door.  I put military -- deputy military prosecutor instead of public

25     prosecutor and wore a uniform, which I received together with the

Page 20874

 1     decision on my deployment.  But the military prosecution service was part

 2     of the prosecution service of the Republic of Croatia.  The second

 3     instance body that we reported to, who took decisions on our decisions,

 4     was the republican prosecution service or the central prosecution service

 5     of the Republic of Croatia.

 6             While we wore the uniforms well, first of all, we received our

 7     wartime deployment papers, and we wore them, because it was inconceivable

 8     as per the standards obtaining at the time, for military personnel to be

 9     prosecuted and tried by people not wearing uniforms, not being military

10     personnel.  Of course, this has been abandoned since.  I wore the uniform

11     until the expiry of my term of office on the 6th of December, 1996.

12     Apart from the technical support that we received from the Ministry of

13     Defence, we had no other obligations or duties towards the Ministry of

14     Defence.  None whatsoever.

15             Moreover, second instances decisions on first instances decisions

16     of military courts were done by the county court in Split, for instance,

17     for criminal offences punishable by a certain number of years, and up

18     above that threshold the second instances decision on county court

19     decision was done by the Supreme Court of Croatia.  As far as our

20     salaries are concerned, we received them from the Ministry of Justice

21     because we are part of that justice system.

22             JUDGE ORIE:  Yes.  Now you said in order to present an authority

23     over the soldiers of the Croatian army, was that exclusively then within

24     your office?  Is that how I have to understand it?  That if suspects

25     would -- or if -- if other persons, or did you also go into the field

Page 20875

 1     and ...

 2        A.   Well, we wore military uniforms, both prosecutors and military

 3     judges, during our term of office in the military justice system.  As far

 4     as going out into the field, those consisted of going at crime scenes or

 5     reconstructions and these were the only outings that we had as military

 6     prosecutors wearing uniforms.  We did not take part in regular activities

 7     or operations or actions of the HV because we were deployed within the

 8     Military Prosecutor's Office or we deployed as part of the military

 9     justice system.  We had the status of a soldier.

10             JUDGE ORIE:  Now, again, could you describe from your insignia

11     which unit you belonged to, which -- although I do understand that it was

12     not in any way functional, but what unit were you a member of when you

13     wore that uniform?

14        A.   We were not members of any unit.

15             JUDGE ORIE:  But what could other people think you would be a

16     member of, looking at your uniform?

17        A.   They could not tell us apart from regular soldiers, because there

18     was no indication on the uniform to that effect.  Maybe towards the end,

19     in 1996, but at the very beginning there were no insignia telling us,

20     military judges or military prosecutors, apart from regular soldiers.  We

21     were deployed by a decision of the minister of defence at the initiative

22     and proposal of the prosecutor general.  This is written in the decrees

23     that have been already been tendered into evidence.

24             JUDGE ORIE:  And what rank, according to your uniform?

25        A.   I did not have any rank for the first couple of years, but in

Page 20876

 1     1995 or 1996, towards the end, I was given a rank of captain.

 2             JUDGE ORIE:  Yes.  Different subject, so we leave the dress to

 3     impress behind us.  This very special confidential register, you said

 4     that existed with only a few entries and nothing remaining in that

 5     register, what would one need to end up in this register?  I mean, what

 6     was so special about it?

 7        A.   The basic registers for the operation of public prosecutors are

 8     those that we discussed in great detail when cross-examined by the

 9     Prosecutor.

10             However, in public prosecutor's service and in the military

11     prosecutor service, as per the regulations which applied to both service,

12     they were identical.  There were some registers with different degrees of

13     confidentiality.  What was entered into those registers were memoranda,

14     letters or information coming from other state bodies which classified

15     their missives, and because of the rules then and which are applied still

16     now, the state body which receives a classified document should not

17     change its status without the approval of the author or the sender of

18     such classified document.

19             In specific cases, several cases, in my opinion mistakenly, this

20     is the only way I can explain that, ended up in the so-called VT or very

21     confidential register.  But when there was established that there were

22     criminal reports, they were transferred or re-entered into the KT

23     register and processed.

24             So no special secrets lay behind that.

25             JUDGE ORIE:  Everything in this special registers finally ended

Page 20877

 1     up in one of the ordinary registers.  I'm trying to find out whether

 2     there was any information --

 3        A.   Yes.

 4             JUDGE ORIE:  -- of a very sensitive nature which was finally not

 5     finding its way to the ordinary registers.  I can imagine high-ranking

 6     suspects or very specific crimes, corruption, whatever.  I'll just trying

 7     to find out whether there was anything in those registers which would be

 8     different from what we finally find in the regular registers.

 9        A.   Everything that was material and relevant for a criminal report,

10     which means if information contained in a confidential document ended up

11     in the regular KT register and processed.  And as far as can I tell you,

12     this happened in Split.  Certain things had to be registered in the VT

13     register if it was necessary to keep them confidential, so that the

14     process -- processing be successful ultimately, and it was necessary only

15     for a handful of people to be aware of such information to successfully

16     conclude a case.

17             We went through those registers to use any information which was

18     necessary to successfully prosecute some recent cases but nothing

19     remained in those VT registers as closed cases.  I mentioned this

20     yesterday, because I noticed that some prosecutors - for instance that in

21     Sibenik - re-- mistakenly entered a case into a VT register instead of

22     the KT register, and out of an abundance of caution, I mentioned that so

23     that you get the full information.  And this was the only reason why I

24     mentioned it yesterday.

25             JUDGE ORIE:  Thank you for those answers.

Page 20878

 1             Have the questions by the Bench triggered any need for further

 2     questions?

 3             MS. GUSTAFSON:  No, Your Honour, I just have two very minor

 4     procedural matters to raise, but we don't need --

 5             JUDGE ORIE:  In relation to this witness?

 6             MS. GUSTAFSON:  In relation to the witness but he doesn't need to

 7     be present for them.

 8             JUDGE ORIE:  One other question, Ms. Gustafson, yesterday you

 9     said you would consider whether you would need more time.  Is there

10     anything remaining there or ...

11             MS. GUSTAFSON: [Microphone not activated]

12             JUDGE ORIE:  Then, Mr. Bajic, this then concludes your testimony

13     in this court.  Being a witness certainly is not the same as being a

14     prosecutor in court; I'm aware of that.  I would like to thank you very

15     much for having answered all the questions that were put to you by the

16     parties and by the Bench, and I would like to wish you a safe trip home

17     again.

18             THE WITNESS: [Interpretation] Thank you, Mr. President.

19             JUDGE ORIE:  Madam Usher, could you please escort Mr. Bajic out

20     of the courtroom.

21                           [The witness withdrew]

22             JUDGE ORIE:  Ms. Gustafson, it's 20 minutes to 1.00.  There are a

23     few procedural matters which the Chamber would like to raise today.  If

24     the matters you would like to raise in relation to this witness could

25     wait until after the break, that would be appreciated, and it may save

Page 20879

 1     time for the coming days if we could deal with those procedural matters

 2     after the break.

 3             We'll resume at five minutes past 1.00.

 4                           --- Recess taken at 12.41 p.m.

 5                           --- On resuming at 1.10 p.m.

 6             JUDGE ORIE:  I have a few procedural items on the agenda.  Let's

 7     start with the first one.

 8             Ms. Gustafson, you said you had two matters in relation to

 9     Mr. Bajic.

10             MS. GUSTAFSON:  Yes, Your Honour.  The first is P2614, which was

11     one of the summary charts that was just admitted into evidence.  A

12     mistake was made.  A version had been sent out last night.  I had further

13     discussions with Mr. Misetic, a further version was then sent out this

14     morning.  We then made a mistake and uploaded the incorrect version.  As

15     Mr. Misetic noted in his re-direct, that has been now corrected with the

16     helpful assistance of the Registrar.  So the correct version is now in

17     e-court under P2614.

18             And the other matter was that I neglected to tender 65 ter 4461,

19     which were the minutes of the coordination council from the 6th of

20     November, 1998, and I'd ask that that be admitted.

21             JUDGE ORIE:  Mr. Misetic, any objections against 65 ter 4461?

22             MR. MISETIC:  No objection, Mr. President.  I -- I will note that

23     with respect to that document, I will seek a stipulation from the

24     Prosecution about one fact, but we'll do that at a late date.

25             JUDGE ORIE:  Yes.

Page 20880

 1             Mr. Registrar.

 2             THE REGISTRAR:  Your Honours, that becomes Exhibit P2616.

 3             JUDGE ORIE:  P2616 is admitted into evidence.

 4             Ms. Gustafson, I made a comment yesterday on some columns in a

 5     document, where I had some problems to -- to find that the English and

 6     the original was the same DO, DOD, has that been resolved?

 7                           [Prosecution counsel confer]

 8             MS. GUSTAFSON:  Yes, Your Honour, the translation has been

 9     created and an e-mail explaining the error was sent to the Chamber

10     yesterday.

11             JUDGE ORIE:  It has not yet been transferred to us.  But Defence

12     is aware of that as well.  So, therefore, that matter has been resolved.

13             Then I would like to move to my next item, which is a statement

14     from this Chamber with regard to the expert report of witness Ivan Pokaz.

15             On the 9th of July of this year, the Gotovina Defence filed the

16     expert report of Witness Pokaz, of which the final translation was

17     communicated to the Chamber by e-mail on the 15th of July, 2009.  The

18     curriculum vitae of Witness Pokaz was subsequently filed on the 16th of

19     July, 2009.  On the 10th of August, 2009, the Prosecution filed its

20     notice, pursuant to Rule 94 bis, of the Rules, objecting to the report

21     and challenging the expertise and qualifications of the witness.  The

22     Prosecution argued that the report should not be admitted into evidence.

23     The Prosecution moreover indicated that, whether or not the Chamber would

24     decide to admit the report, it would not seek to cross-examine the

25     witness, unless he would be called to testify viva voce.

Page 20881

 1             On the 12th of August, 2009, the Markac Defence filed its notice,

 2     expressing its wish to cross-examine Witness Pokaz.

 3             On the 25th of August, 2009, the Gotovina Defence filed an

 4     addendum to the report -- to the expert report of Witness Pokaz, which

 5     elaborates on the use of quotation marks throughout the expert report.

 6             The Chamber defers its decision on admission of the expert report

 7     until after the testimony of Witness Pokaz.  The Prosecution has in its

 8     notice made detailed challenges to the report, and the Chamber finds that

 9     the concerns of the Prosecution are not without merit.  In particular,

10     the Chamber has concerns in relation to the transparency of the methods

11     applied by the witness and of the sources upon which the witness's

12     conclusions are based, and in this regard, the Chamber emphasises that an

13     expert is expected to give his expert opinion in full transparency of the

14     established or assumed facts he relies upon and of the methods used when

15     applying his knowledge, experience, or skills to form his expert opinion.

16     The sources used in support of any expert opinion must be clearly

17     indicated and accessible.  If such transparency is lacking, this will

18     seriously affect the parties' and the Chamber's possibility to test or

19     challenge the factual basis on which the expert report -- on which the

20     expert witness reached his or her conclusions, and thereby to assess the

21     probative value of the expert report.  The result might be non-admission

22     or that only limited weight can be attached to the expert report.

23             Therefore, before deciding on admission of the expert report, the

24     Chamber will allow the parties, taking into account the mentioned

25     guidance, to explore the opinions expressed by Witness Pokaz in his

Page 20882

 1     report.

 2             And this concludes the Chamber's statement.

 3             I add to this that leave is granted to the Prosecution to exceed

 4     the word limit as requested in the notice.

 5             I move to next item on the -- on my agenda, and we move into

 6     private session.

 7                           [Private session]

 8   (redacted)

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10   (redacted)

11   (redacted)

12   (redacted)

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25   (redacted)

Page 20883

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 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

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17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24                           [Open session]

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

Page 20884

 1             JUDGE ORIE:  Thank you, Mr. Registrar.

 2             There is an issue still pending, in relation to the European

 3     Union Monitoring Mission.  The Chamber would like to be informed by the

 4     Gotovina Defence on which documents are still missing.  The Chamber has

 5     received and it has been filed, I think, a letter written by Mr. Solana,

 6     dated 13th of August.  In the attachment to this letter, we find three

 7     categories of documents, the first documents which were received by the

 8     Prosecution - I think there are two - received by the Prosecution which

 9     were then later redacted by the EU and given back to the Prosecution for

10     disclosure to the Defence.  The second category in the attachment is

11     those documents that could not be found in a new review of the archives.

12     And then the third category was documents that apparently -- redacted

13     documents were delivered on a certain date to the Gotovina Defence.  I

14     think it was the 1st of July, if I'm not mistaken.

15             Does that mean, Mr. Misetic, that those documents were received

16     directly from European Union Monitoring Mission or the European Union on

17     that date and not through the Prosecution, as was the case with other

18     documents?

19             MR. MISETIC:  That is correct.  We travelled to Brussels and

20     picked up the documents.

21             JUDGE ORIE:  Yes.  These were six documents from what I

22     understand.

23             The Chamber will consider whether and how to proceed.  An

24     application is still made in this respect by the Defence, but the Chamber

25     would like to be informed about what documents are now still sought by

Page 20885

 1     the Gotovina Defence.

 2             MR. MISETIC:  Your Honour, if I may, we will certainly work on

 3     that expeditiously and get you a list.  I want to be transparent, however

 4     that -- in addition to the documents that the Chamber narrowed the issues

 5     down to, we, in all likelihood will request from the Chamber a

 6     reconsideration on the issue of one category of documents which are the

 7     ECMM logs from RC Knin in Knin; and, therefore, there will be that

 8     additional set of documents.  We have good faith basis to believe that

 9     they existed and that they would be highly relevant in this proceeding,

10     so we will add that in addition to the list that has been -- the

11     narrowing of the documents done by the Chamber.

12             JUDGE ORIE:  Well, I don't know whether we narrowed.  We invited,

13     first, to focus on the documents for which, in this year of its

14     existence, were available to the Chamber.  And from the answer by

15     Mr. Solana, we see that they have reviewed their archives in relation to

16     those documents.  Of course, this whole procedure is -- is a bit blurred

17     here and there by documents sought, already available, or other documents

18     considered to be in existence, which there is still doubt as to whether

19     they do exist or not.  So if we could get an update on -- on what you are

20     still seeking, and if there are any further indications of the existence

21     of such documents, of course, we would welcome that as well, so that we

22     have a -- an update as to the present position.  This is not in any way a

23     commitment of the Chamber, other than that it will then seriously

24     consider whether, and how, to proceed.

25             MR. MISETIC:  Yes, Mr. President.

Page 20886

 1             JUDGE ORIE:  Thank you.

 2             These were the items on my agenda.

 3             Any further procedural matters?

 4             Mr. Hedaraly.

 5             MR. HEDARALY:  Yes, Mr. President.  There was an issue with the

 6     exhibit list that we have received for experts Jones and experts Corn,

 7     and there are some documents listed there that have not been dealt with

 8     in the report.  For Expert Corn, for example, we're talking about P1125,

 9     General Gotovina's order for attack; D1205, Mr. Rajcic's attachment for

10     artillery; and P461, the Brioni transcript.  And the issue,

11     Mr. President, is that we have not received any notice as to what the

12     opinion that is being sought by the expert on these documents is.  We

13     don't even know, based on the report, whether he was provided those

14     documents, and if he weren't he is then going to be elicited opinions on

15     the stand, we will not have proper notice of those documents.  The same

16     documents also have been on the exhibit list for Expert Jones, who is not

17     listed as an artillery expert; and, therefore we object to those as well

18     and I just want to put that on the record.

19             JUDGE ORIE:  Yes.  Mr. Kehoe.

20             MR. KEHOE:  Yes, Mr. President, the opinions of the -- the

21     experts are contained in their reports as the Chamber can see.  With

22     regard to the other documents that could potentially be employed, we have

23     given that list of documents to the Prosecution.  And we're simply

24     following the procedure that the Prosecution employed in the direct

25     examination of Colonel Konings, for instance, where we received a

Page 20887

 1     plethora of documents in addition to -- that had not been in his report

 2     that they used during the course of their direct examination.

 3             But the opinions that he -- that these experts are going to

 4     employ are in the actual report.  There's not going do be any divergence

 5     from those opinions.  We are simply giving the array of documents that

 6     could potentially come up during direct examination.

 7             JUDGE ORIE:  Yes.  I think one of the concerns expressed by

 8     Mr. Hedaraly is also whether these documents had been available to the

 9     expert when forming his opinion.  And perhaps, ver briefly, I earlier

10     read a statement with regard to the expert report of Mr. Pokaz and, of

11     course, much of what was said in this statement might also apply to these

12     expert reports.  That is, the transparency and sources, assumed facts, of

13     course, sometimes we find them, as far as Mr. Corn is concerned, for

14     example, what facts he was given to base part of his opinion upon is

15     clear.

16             MR. KEHOE:  Those item had been -- the factual items with regard

17     to Corn and with regard to anything that -- that was of a factual nature

18     has been provided to counsel.  So there has been, for instance, with

19     Professor Corn, there was a series of --

20             JUDGE ORIE:  We've seen that.

21             MR. KEHOE:  Yes.

22             JUDGE ORIE:  But, of course, I think one of the concerns of

23     Mr. Hedaraly is that he might have a full overview of all the material

24     which was provided to or was available to the expert.  And, of course, it

25     might not always be easy to -- to have a complete overview and we have

Page 20888

 1     received submissions by the parties on whether there are any obligations

 2     in this respect.  We have not decided on that matter or we have not given

 3     any orders, but we're working on it hard, where it seems that Defence is

 4     primarily looking at the matter from a point of view of disclosure

 5     obligations; whereas, the Prosecution's concerns seem to go more into the

 6     direction of how to test the evidence if we don't have that information.

 7     I'm not going to say anything further on it, but the Chamber expects soon

 8     to give further guidance and/or orders to the parties in this respect.

 9             MR. KEHOE:  If I may just add one other issue.  When the Chamber

10     is considering the obligations in this regard, I would ask the Chamber to

11     look at Mr. Konings report where, in fact, he cited two documents in his

12     report.  And in conjunction with that, we were provided any number of

13     additional documents in a list provided by Mr. Russo that were provided

14     to the witness -- to the expert, Colonel Konings.

15             So the situation is clearly not dissimilar.  [Overlapping

16     speakers] ...

17             JUDGE ORIE:  Mr. Kehoe, what you are doing is you are opening

18     arguments on the matter.  What Mr. Hedaraly did is that he did put a

19     certain matter on the record not really arguing the matter at this very

20     moment.  We -- the Chamber is, of course, in possession of the positions

21     taken by the parties on what obligations there are.  The parties are,

22     meanwhile, in relation to the Pokaz report, aware of -- of what the

23     Chamber needs to finally test of factual basis and to assess the

24     probative value of expert reports.

25             MR. KEHOE:  Yes.

Page 20889

 1             JUDGE ORIE:  I'm not going to take it any further at this moment,

 2     on the basis of the written submissions until now.  The Chamber will

 3     address the matter further shortly.

 4             MR. KEHOE:  I understand, Mr. President.

 5             JUDGE ORIE:  Any further matter?

 6             There are no witnesses available until Monday, from what I

 7     understand, which means that we adjourn and we resume and Monday, the

 8     31st of August, 9.00 in the morning, in Courtroom I.

 9                            --- Whereupon the hearing adjourned at 1.36 p.m.,

10                           to be reconvened on Monday, the 31st day of August,

11                           2009, at 9.00 a.m.