Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26075

 1                           Friday, 11 December 2009

 2                           [Open session]

 3                           [The accused Cermak entered court]

 4                           [The accused Gotovina and Markac not present]

 5                           --- Upon commencing at 2.07 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone in and around the

 7     courtroom.

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

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

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

11     the Prosecutor versus Ante Gotovina. et al.  Thank you.

12             JUDGE ORIE:  Thank you, Mr. Registrar.

13             A special welcome to you Ambassador Paro, I do understand, and

14     Mr. Cule, a special welcome to you.  The Chamber highly appreciates that

15     you were able to attend this hearing, although notice had been given only

16     yesterday evening that we intended to have this hearing.  That's highly

17     appreciated.

18             Before we go to the substance of this hearing, I first want to

19     establish that Mr. Cermak is present.  Mr. Cermak, yesterday, we briefly

20     discussed that counsel would not be there but you were all in agreement

21     that we could proceed even in the absence of counsel.  I see you're

22     nodding yes, so that's on the record.

23             I also see that Mr. Gotovina and Mr. Markac are not present in

24     court.  Let me just see.  I should have received two notices, I will get

25     them on my screen so that I can look at them.

Page 26076

 1             Here I have a form, absence from court due to illness, although

 2     it's not about illness, that stating that Mr. Gotovina has discussed the

 3     matter with his counsel, that he understands that he has a right to be

 4     present but that he waives this right.  And on the second page, unlike

 5     yesterday, there's no further explanation of the present situation.

 6             Mr. Misetic, would you like to add anything or would you just

 7     leave it as it is it.

 8             MR. MISETIC:  Mr. President, I can just confirm that we have

 9     discussed it and the circumstances from yesterday remain unchanged.

10             JUDGE ORIE:  Which means that you are still instructed to

11     participate in any hearing on procedural matters, as are scheduled for

12     this afternoon.

13             MR. MISETIC:  That is correct, Mr. President.

14             JUDGE ORIE:  Yes.

15             Mr. Mikulicic, let me just check the other form.

16             Same form.  The box that Mr. Markac has discussed the matter with

17     counsel is ticked.  The waiver box has not been ticked.  There are no

18     further comments on the second page.

19             Mr. Mikulicic, would you like to add anything.

20             MR. MIKULICIC:  Your Honour, there's not much to add.  I had a

21     telephone conversation with my client this morning, and he is in the same

22     position as he was yesterday.

23             JUDGE ORIE:  Thank you for that information.

24             MR. MIKULICIC:  Thank you.

25             JUDGE ORIE:  I'm just checking whether all the information I

Page 26077

 1     should have and sometimes comes in only one or two minutes before the

 2     hearing, whether I've seen it all, and that is what takes me a second.

 3             Yes, then, having dealt with these formal matters, the Chamber

 4     has received a response filed by the Prosecution, a response to the

 5     written motion, the motion to issue a subpoena for -- in order to ensure

 6     the attendance of Mr. Brammertz on the hearing on the 16th of December.

 7     That is, next week, Wednesday.

 8             As I said before, the Chamber wants to focus primarily on the

 9     requests to freeze the present situation, and -- but, is, of course, is

10     looking forward, also, because the matters are not entirely unrelated to

11     what we could expect on the 16th of December.

12             Now, it was suggested by the Gotovina Defence that Mr. Bajic

13     would be in the delegation which would represent the Croatian government

14     on Wednesday.  You may have seen that.  I do not know whether you have

15     already considered the composition of the delegation for next Wednesday.

16     If so, we'd like to hear now already who will be on the delegation.

17             Could you please activate your microphone when you speak.

18             Yes, Mr. Paro.

19             MR. PARO: [Interpretation] I am the Ambassador of the Republic of

20     Croatia, and my government has furnished me with a written statement.

21     However, I can answer immediately that my government is not opposed to

22     the presence of Prosecutor Bajic to the hearing on the 16th of December.

23             JUDGE ORIE:  Yes, and -- then, Mr. Bajic, is it the intention of

24     your government to make him a member of the delegation or ...

25             MR. PARO:  Well, according to what I said, we have nothing

Page 26078

 1     against that so he has to be approached and then he would know.

 2             JUDGE ORIE:  Well, we invited primarily, of course, the

 3     government to appear and not individuals; although, it has been suggested

 4     that we could do so.  But, of course, if you have already the intention

 5     to -- for him to be on the delegation that represents the Republic of

 6     Croatia on Wednesday, then, of course, no further action would be even to

 7     be considered.

 8             MR. PARO:  So -- if the Court wishes, you can invite him and we

 9     have no objections on that.  I suppose that he would turn up.

10             JUDGE ORIE:  Yes.  Nevertheless, I would invite you to -- perhaps

11     to consult with -- perhaps it is you yourself who composes the

12     delegation.  Whether -- even without an invitation that he would be here

13     anyhow because he would be a member of the delegation, that would save us

14     even to consider to write him a letter and in what way to do that and how

15     to communicate with him.

16             Mr. Tieger.

17             MR. TIEGER:  Your Honours, stop me if this is not a helpful

18     intervention, but based on my understanding of the thrust and purpose of

19     the hearing of December 16th, it appeared to an inquiry into the results

20     of the administrative investigations with specific focus on documents

21     that were produced, documents that were not produced, documents that

22     remain in dispute, in contrast to anything having to do with efforts by

23     the judicial authorities or judicial investigation, and maybe that's a

24     bit of the confusion here.  I would have been surprised if anyone outside

25     the administrative investigation would have been part of that process.

Page 26079

 1             JUDGE ORIE:  Mr. Tieger, perhaps I should have informed the

 2     parties that the chamber is considering, at this moment, to extend the

 3     scope of that hearing.  The matters, as I said before, are not totally

 4     unrelated, so therefore the Chamber is considering that and that's the

 5     reason why I'm inquiring in these matters.  And apart from that,

 6     existence of documents, logic, we'd like to have as much expertise

 7     available as possible, and I do not intend at this moment to further

 8     elaborate on this matter, but I was just inquiring whether the Republic

 9     of Croatia had already made up its mind as far as the composition of the

10     delegation is concerned.  And the Chamber took note well of the

11     observations made by the Prosecution in this respect in the submission of

12     this morning, and we'll also consider whether that matter was something,

13     although introduced in a motion, whether that was a matter which really

14     was a response to what seemed to be the core of that motion; which was

15     subpoena to be issued against Mr. Brammertz.

16             But it can be understood, since that matter apparently as a side

17     issue was introduced in the motion, so, therefore, it's understandable

18     that you at least reacted, responded to that.

19             MR. MISETIC:  Mr. President.

20             JUDGE ORIE:  Yes.

21             MR. MISETIC:  I'm sorry to interrupt.

22             This may be an opportune time, though, to advise the Chamber that

23     we did also obviously review the Prosecution's response.  We have,

24     whenever the Chamber finds it convenient, and with your leave we would

25     like to address some of the matters raised there, and in particular

Page 26080

 1     because I think it is related to what Mr. Tieger raised, which is whether

 2     is there is a connection between what the initial purpose of the hearing

 3     was on the 16th and our motion, and I think can explain that with the

 4     Chamber's leave at the appropriate time.

 5             JUDGE ORIE:  Yes.  As I said, at this moment, we are focussing on

 6     a different matter, and I never had the impression that if you would be

 7     given an opportunity to respond to certainly these matters that you would

 8     remain silent, Mr. Misetic.  We all too well know that are you only too

 9     glad to respond to anything said in that response.

10             Mr. Ambassador, if you would have made up your mind as far as the

11     composition of the delegation is concerned would you inform us.  If that

12     could be done this afternoon, that would be fine.  If not, we'll consider

13     what to do.

14             One second, please.

15                           [Trial Chamber and legal officer confer]

16             JUDGE ORIE:  Yes.  The hearing today was scheduled in response to

17     a written motion filed by the Gotovina Defence, as I said before, which

18     sought, through an order, to ensure the presence of Mr. Brammertz next

19     week, Wednesday.  This motion was followed by several oral motions mainly

20     seeking cease and desist orders in various respects and the temporal

21     scope of those orders was not limited, but in the alternative it was said

22     that at least we should have a temporary order which would freeze the

23     present situation, and that's the focus of hearing this afternoon.

24             The Chamber thought it wise when the -- when it invited the

25     Registry to get in touch with the representatives of the Republic of

Page 26081

 1     Croatia to very briefly set out what motions were filed, because,

 2     otherwise, we -- the Chamber feared that the representatives of Croatia

 3     would -- would not even know what they were called for.  The letter in

 4     which an invitation is put on paper and a very short annex setting out

 5     with hardly any detail what the basis is will be filed, or is filed

 6     already, so that the parties will know under what terms the

 7     representatives of Croatia were -- what kind of information they received

 8     before coming to this courtroom.

 9             Now the factual background which is not set out in any detail in

10     the annex to the letter is the following.  That, already for some time,

11     the Prosecution of Mr. Ivanovic for concealing and/or destroying archival

12     material is the subject of -- has been the subject of motions and some

13     decisions.  The main topic in that litigation is immunity.

14             Last Thursday, the Chamber was informed that -- by the Gotovina

15     Defence, and I'm not giving any opinion about to what extent the

16     information is accurate or not, but that Mr. Ivanovic had been deprived

17     of his liberty.  That was on Thursday.  The Chamber was, yesterday,

18     informed that he is not deprived of his liberty anymore at this moment.

19     He was released yesterday.

20             The Chamber further was informed that searches were conducted and

21     material was seized, including computers, in the law offices in which the

22     Gotovina Defence works, and also outside those law offices.  That is to

23     say, two computers that were in the possession of two members or former

24     members of the Gotovina Defence team travelling to Zagreb, and that these

25     two computers were seized as well.

Page 26082

 1             The specific concerns raised in this respect were a violation of

 2     legal privilege.  That is, the privilege of confidentiality of

 3     communication between counsel and accused.  Second issue which was raised

 4     was the risks that any of those materials seized would contain material

 5     which was under an order by this Tribunal to be kept confidential.

 6             These were the two concerns, in addition to the earlier litigated

 7     and that litigation has not yet finished, litigation about the immunity

 8     for Mr. Ivanovic, and the question whether he enjoys such immunity as a

 9     member of the Gotovina Defence team.

10             Apart from the concerns expressed by the Gotovina Defence, in

11     view of their work and the members of their team, the Markac defence

12     brought to the attention of the Chamber that one of the members of their

13     team allegedly had been, as it was said, discussed.  I do not know

14     exactly in what context and for what purpose.  But, therefore, he joined

15     in the concerns, although less specific and less concrete at that moment,

16     expressed by the Gotovina Defence.

17             The first thing the Chamber would like to hear is whether there

18     are any factual updates to be made, in relation to the information the

19     Chamber received yesterday.

20             Is there anything, Mr. Misetic, you would like to bring to the

21     Chamber's attention, updating us on the factual information?

22             MR. MISETIC:  Mr. President, nothing, other than, as the Chamber

23     is aware, there was supposed to be a hearing this morning in

24     Mr. Ivanovic's case.  That hearing did in fact proceed and is now

25     completed.

Page 26083

 1             JUDGE ORIE:  Yes.

 2             Anything the Prosecution would bring to the attention of the

 3     Chamber from a factual point of view.

 4             MR. TIEGER:  No, Your Honour.

 5             JUDGE ORIE:  Thank you.

 6             Then I may have a few questions for the representatives of the

 7     Republic of Croatia.

 8             Yesterday during the hearing it -- it -- there was no -- no solid

 9     information about the searches and the seizures.  The Chamber asked

10     yesterday whether it was known in what context the searches had taken

11     place.

12             Could you inform us as who authorised -- authorised the searches

13     and in what context they took place?

14             MR. PARO: [Interpretation] Your Honour, I have before me a

15     document which I believe addresses each of your questions, so if you will

16     allow me, I would like to read it for you.

17             JUDGE ORIE:  Yes.  And then we'll see whether we have any further

18     questions.  But perhaps we find the answers already in the document you

19     will read.

20             Now, it is our experience that if someone starts reading, that

21     the speed of speech usually goes up which then causes problems for our

22     interpreters and our transcriber.  So if you read take your time.

23             MR. PARO:  I will have mercy on the translators.

24             [Interpretation] The Republic of Croatia cooperates with the

25     ICTY, based on the constitutional law on cooperation between Croatia and

Page 26084

 1     the Tribunal dating back from 1996 and based on other regulations.  The

 2     activities that are being taken place in view of complying with the

 3     requests of the ICTY Prosecution, so far we have complied with 853 such

 4     requests.  We have complied with the order of the Trial Chamber dated

 5     16th September 2008 to find the missing artillery logs pertaining to the

 6     military and police Operation Storm, or, rather, to establish its lot.

 7     As well as to finds the archival documents in the possession of the

 8     Republic of Croatia which is not stored in officially archives.

 9             In order to implement the order of the Trial Chamber dated

10     16 September 2008, so far, we have carried out an administrative

11     investigation and the Trial Chamber and the Prosecutor's office have been

12     informed in six detail reports, which provides explanation about all the

13     measures an actions that have been undertaken within the scope of this

14     administrative investigation.

15             As a result of the administrative investigation, or, rather,

16     since the results of the administrative investigation have found to be

17     insufficient on the part of the Prosecutor's office, and after the

18     meeting between the Prosecutor and the prime minister of Croatia in

19     September 2009, a special inter-sectoral task force has been established.

20     The task force is headed by the head office of the police.  The main task

21     was to eliminate any shortcomings and failures of the administrative

22     investigation, and also to find documents that is sought only not by the

23     OTP and the Trial Chamber of this Tribunal, but which are also sought by

24     the Republic of Croatia to include them in its archives.  [In English]

25     Not to include them in its archives but -- because they are property of

Page 26085

 1     Croatian archives.

 2             [Interpretation] The task force has therefore drafted an action

 3     plan and an analytical information as its working documents and as the

 4     foundation for all the future actions.  The task force has already

 5     submitted a report on its activities on the 9th of November, 2009.  That

 6     report has been submitted to both the Trial Chamber and the OTP.  In the

 7     course of any future actions, the task force has inspected documents in

 8     the operative administration of the armed forces of Croatia and the

 9     central military archives and the task force has found the documents

10     which indicate the efforts of the Main Staff of the armed forces to

11     collect, protect, put in order and prevent any misuse of documents

12     pertaining to Operation Storm and also to Operation Flash.  Those efforts

13     are reflected in the initial order by the Chief of the Main Staff dated

14     June 1998.

15             The task force, in its actions, has come by certain information

16     which represents the reasonable doubt as to the fact that certain

17     individuals might have committed crimes which are prosecuted ex officio

18     and that is why, on the 7th December, 2009, it was defined that police

19     investigation would be carried out in compliance with Article 177 of the

20     Law on Penal Procedure, as well as investigative actions in keeping with

21     Article 211 through 215, of the Law on -- of the Law on Penal Procedure.

22             After consultations in the State Prosecutor's Office of the

23     Republic of Croatia, which were based on cooperation between the police

24     and the State Prosecutor's Office in pre-trial and trial proceedings,

25     measures and actions were defined with a view to establish the custody --

Page 26086

 1     the chain of custody of the documents and finding the documents which are

 2     property of the Ministry of Defence and which was not in -- submitted to

 3     the Main Staff in compliance with the prevailing regulations, and it was

 4     not also -- it was also not filed with the central archives.  All those

 5     documents pertain to Operations Storm and Flash.  Those measures also

 6     apply to all the other documents that represent archival holdings and

 7     also to establishing the crimes which are prosecuted ex officio, the

 8     destruction and cover-up of archival holdings, pursuant to Article 327 of

 9     the Penal Code of the Republic of Croatia.  Likewise, through the

10     implementation plan, people were defined and interviewed.  Official Notes

11     were made of all of those interviews.

12             The action plan also describes information which was obtained in

13     the course of those interviews and, based on that, in the follow-up of

14     all those interviews and reports, in -- in the investigation, additional

15     actions were undertaken in order to establish the task force, and those

16     additional actions are as follows:  16 searches of homes and business

17     premises; three searches of passenger vehicles; one search of a lawyer's

18     office; 32 interviews; several thousands of pages of different documents

19     have been seized and are now subject of an in-depth analysis by military

20     experts.

21             As regards Marin Ivanovic, as well as other individuals, in

22     keeping with Article 211 of the Law on Penal Procedure, the police

23     authorities have filed a proposal for the search of the apartments and

24     other premises, as well as of the vehicle to the municipal prosecutor's

25     office in Zagreb.  In keeping with Article 211 of the Law on Penal

Page 26087

 1     Procedure, in connection with Article 213 and 214 of the same Law, the

 2     Prosecutor's office has sent a proposal to the judge in the court in

 3     Zagreb with a request to issue an order for the search of the apartment

 4     and other premises, as well as the passenger vehicle.  The order was

 5     issued by the investigating judge of the county court in Zagreb.

 6             On the 9th of December, 2009, on the 9th of December, 2009, at

 7     11.35, in the territory of the police administration of Split and

 8     Dalmatia county, the police forces found, located and arrested, pursuant

 9     to Article 95, paragraph 2, in connection with Article 102, paragraph 2,

10     of the Law on Penal Procedure, in order to implement the order -- the

11     previous order of the investigating judge of the county court in Zagreb,

12     in order to carry out the search of the apartment of Marin Ivanovic, as

13     well as all of his movable property, i.e., of his passenger vehicles.

14     Likewise, when Marin Ivanovic was stopped, it was noticed that he is in

15     possession of three binders with documentation unknown to the arresting

16     officers.

17             On that same day, at 1930, Mr. Marin Ivanovic was brought by the

18     police officers of the administration of Split and Dalmatia county to the

19     police administration of Zagreb county.  The passenger vehicle was

20     searched, the one that he was in at the moment when he was arrested.

21     Three binders were found with documents of military origin, and those

22     documents pertained to Operation Storm --

23             JUDGE ORIE:  One second.

24             The issue at stake is whether such a search and seizure could

25     take place.  Therefore, to describe what was seized, where it's still to

Page 26088

 1     be considered whether the seizure and order search, in any way violated

 2     any legal provision, seems not to appropriate to me at this very moment.

 3     So I appreciate that you set out what happened, but then to describe the

 4     content of those folders in public might not be something that the

 5     Chamber expects you to do.

 6             MR. PARO:  Okay.

 7             JUDGE ORIE:  Please proceed.

 8             MR. PARO: [Interpretation] A laptop was also seized.  During the

 9     search, it was sealed, and without a special order by an investigating

10     judge, that laptop cannot be switched on or searched.  If I may be -- if

11     I may emphasise, that laptop was sealed in the presence of Mr. Ivanovic,

12     as well as of the investigating judge.

13             The search of the vehicle finished at 2250.  The search of the

14     apartment, the other vehicle, and the lawyer's office was carried out on

15     the following day; on the 10th of December.

16             As the search of the apartment was carried out at his address in

17     Zagreb which is Trnovcica 32, what was found and seized was an agenda or

18     a diary and several CD media and floppy disks.

19             When the other car was searched, no relevant documents were

20     found.

21             The individuals parents' house was also searched in the territory

22     of the Split and Dalmatia county administration in a village called

23     Krstanica.  During the search, no relevant documents were found.  When

24     the lawyer's office in Zagreb at Selska 46 was searched, no relevant

25     documents were found there.

Page 26089

 1             It is hereby emphasised that the lawyer's office is used

 2     exclusively by Mr. Ivanovic.  It is by no means an office that is used by

 3     the entire Gotovina Defence team.

 4             The search of the lawyer's team [as interpreted] was carried out

 5     by the investigative judge of the -- the search of the lawyer's office

 6     was carried out by the investigative judge of the county court in Zagreb,

 7     Mrs. Jadranka Mandusic, in the presence of the Croatian Bar Association,

 8     Mila Mikecin Misetic, keeping with the law -- provisions of the Law of

 9     Legal Profession.  After an interview, Mr. Ivanovic was released.

10             The Republic of Croatia would like to emphasise once again that

11     in undertaking all the activities during the administrative investigation

12     and during the activities undertaken by the task force, the

13     constitutional law has been fully compiled with.  The constitutional Law

14     on Cooperation with The Hague Tribunal dating back to 1996, as well as

15     all the other Croatian relevant regulations.  The same applies to the

16     activities undertaken by the task force which we have just described.

17             Croatia does not oppose to the participation of the State

18     Prosecutor, Mr. Bajic, at the hearing on the 16th of December, should the

19     Trial Chamber deem his presence necessary.

20             As far as the alleged pressures on the part of the OTP on the

21     bodies of the Republic of Croatia, Croatia is prepared to provide the

22     Trial Chamber the complete correspondence between the OTP and the

23     Croatian government, in order to shed even more light on the

24     communication between the two that exist -- that has existed so far.

25             Croatia would like to emphasise that all the undertaken

Page 26090

 1     activities, starting with the administrative investigation to the

 2     activities of the task force, have been directed towards complying with

 3     the order issued by the Trial Chamber on the 16th of December, 2008, as

 4     well as the request on the part of the OTP of the ICTY to submit the

 5     necessary documents, as well as the need for the Republic of Croatia to

 6     locate the missing archival holdings which are its property.

 7             Thank you.

 8             JUDGE ORIE:  Thank you, Mr. Ambassador.

 9             Well, you said that we'll find the answers in your statement.

10     Unfortunately, it's not entirely clear.  You mentioned quite a lot of

11     legal instruments and some various purposes for seeking documentary

12     evidence.

13             I see at least three options, at least options of these matters,

14     which were referred to by you in any way.  The first is the ongoing

15     proceedings against Mr. Ivanovic; another option would be any new

16     investigation or any new proceedings instituted against Mr. Ivanovic; you

17     also quoted the Law on Cooperation with the Tribunal, but that could be

18     another purpose for search and seizure, at least potentially.

19             It is not yet clear to me in what procedural context the search

20     was ordered, was permitted.  You said that there were orders sought and

21     orders received.  Now, usually on an order you find a number and a name

22     of an accused.  If it's a criminal -- or at least an investigation or

23     proceedings under penal law.  In administrative matters you might find

24     something else.  I do not how the cooperation with the Tribunal is

25     registered, by what type of proceedings.  But I'd like to know exactly

Page 26091

 1     what -- the context of what proceedings these search and seizures have

 2     taken place.

 3             MR. PARO: [Microphone not activated].

 4             JUDGE ORIE:  If you could please activate your mike.

 5             MR. PARO:  If you allow me, I don't consider myself sufficiently

 6     expert on these procedural matters, but maybe Mr. Cule might help.

 7             JUDGE ORIE:  Are you assisted by him, so his assistance will

 8     certainly be useful.

 9             Mr. Cule.

10             MR. CULE: [Interpretation] Your Honour, my name is Josip Cule.  I

11     am the Deputy of the Chief State Prosecutor of the Republic of Croatia.

12             As for searches which have been mentioned in the statement read

13     out by Mr. Ambassador, these were searches ordered by the investigative

14     judge of the relevant court in the Republic of Croatia.  Therefore,

15     please -- therefore searches can only be conducted by order of court.

16     There can be no searches without a court order.

17             JUDGE ORIE:  Yes.

18             MR. CULE: [Interpretation] Let me clarify how these orders were

19     issued and how the searches were consequently conducted.

20             JUDGE ORIE:  From your answer, I take it that these were searches

21     conducted in the context of criminal procedure or investigations

22     preceding -- so, penal law rather than administrative law.  If that is --

23             MR. MISETIC:  I got the impression that the witness -- the

24     witness, I'm sorry.  That Mr. Cule would -- was about to explain -- and

25     my impression was somewhat different than your's, Mr. President, so

Page 26092

 1     perhaps he could explain.

 2             JUDGE ORIE:  We will ask him to explain.  But what I would like

 3     to ask him is also to focus on not only the -- the general legal context

 4     but also if we're talking about an investigation, that who is the suspect

 5     in that investigation, or if it is proceedings taken against a person,

 6     who is that person, and on what suspicion exactly, especially whether

 7     it's the same subject matter as we have found in the pending case against

 8     Mr. Ivanovic, or whether it's anything different from that, either a

 9     different person or different events.

10             Please continue.  I apologise for interrupting.

11             MR. CULE: [Interpretation] There are many questions so I have to

12     start with the last question so that what I said last would be made

13     clearer.

14             There is one proceedings ongoing against Marin Ivanovic, and the

15     proposal of the indictment has been issued.

16             There is another proceedings ongoing against him, where the

17     county court in Zagreb has requested that investigative activities

18     against him be carried out.  These investigative activities were

19     requested on the 19th of November, 2009.  What the Ambassador just spoke

20     about is relating to the new circumstances.  Namely, the task force has

21     established new information that Marin Ivanovic could be in possession of

22     some more documents and, therefore, could have committed another crime

23     under Article 327 of the Penal Code.  When the police has information of

24     this kind, then it has to carry out certain investigations when

25     proceeding further.  So this is not yet criminal procedure.  It is just

Page 26093

 1     that there is certain suspicion.  One of the activities that can be

 2     carried out is also the search of an apartment or of premises or of a

 3     vehicle.

 4             In order for -- for it to be possible for a search to take place

 5     and there is no criminal procedure as yet, the police addresses the State

 6     Prosecutor's Office.  The State Prosecutor's Office then assesses whether

 7     there are sufficient elements in the proposal of the police which make it

 8     likely that the investigation would yield some results; that is to say,

 9     that certain documents might be found or not.  The State Prosecutor's

10     office then requests the court to issue an order for the search of a

11     apartment.

12             So this is still not criminal procedure.  This is all part of

13     what we call preliminary investigative procedure.  Once the court issues

14     the order to search an apartment, once the search is conducted, and once

15     the State Prosecutor's Office is informed about the results of the police

16     work, the State Prosecutor's Office will only then make a decision

17     whether criminal procedure would be initiated or not.

18             As for information on the basis of the data provided by the task

19     force, the police requested, I think, a total of a search of 19 premises

20     or was it 19 persons?  But, in any case, the State Prosecutor's office

21     did not endorse all the proposals of the police.  In one case, it was of

22     the opinion that the circumstances stated were not sufficient.  So, in

23     this case, the police carried out some activities and then the State

24     Prosecutor's office and the court did so, all of that in connection with

25     new information found through the activities of the task force as

Page 26094

 1     explained by the Ambassador in his statement.

 2             JUDGE ORIE:  So I do understand now that the searches and the

 3     seizures took place in the recently initiated preliminary investigative

 4     procedures, which are directed against Mr. Ivanovic.

 5             Is Mr. Ivanovic the only suspect in that case or are there more

 6     suspects?

 7             MR. CULE: [Interpretation] No, he is not the only one.  There are

 8     several persons.  I believe that the report that has been submitted

 9     mentions these persons individually, and I think that there are eight in

10     number.

11             JUDGE ORIE:  Yes.  I'm primarily interested in whether or not

12     there are any other members of any of the Defence teams in this case

13     included in the other suspects.

14             MR. CULE: [Interpretation] Your Honour, have I the name of these

15     persons here.  I don't know if I can read all these names of these

16     persons publicly.  I have them here.  It's a document which was submitted

17     to the ICTY.  It's a report to the Trial Chamber and the Office of the

18     Prosecutor.

19             JUDGE ORIE:  Dated?

20             MR. CULE: [Interpretation] I do not know if --

21             Dated the 9th of November, 2009.

22             JUDGE ORIE:  It's mainly for you to consider whether or not it

23     would be appropriate to pronounce these names in public.  I'm mainly

24     interested - and another way of dealing with the matter would be - that

25     Mr. Misetic could confirm or deny that there's any other Defence team

Page 26095

 1     member involved.

 2             Mr. Tieger.

 3             MR. TIEGER:  Before anyone considers the procedure of reading

 4     those names out loud, I believe if I understand the date correctly that

 5     information is already available to the Defence and the Court.

 6             JUDGE ORIE:  Yes.  At the same time, of course, the Chamber has

 7     asked the Republic of Croatia to report.  That does not mean that we're

 8     always analysing the reports submitted in such a way that the

 9     transparency in what we know and what we do not know is lost.  We'll use

10     that material in accordance with the matters that are put to us; that is,

11     satisfaction or lack of satisfaction.

12             MR. TIEGER:  I may have missed an exchange with you and

13     Mr. Misetic.  I was just suggesting that rather than hear the names and

14     then compare it to members of the Defence team, that Mr. Misetic could

15     look at the report and then advise the Court whether --

16             JUDGE ORIE:  If that was what you intended, I think I already

17     hinted at that possibility.

18             MR. MISETIC:  Mr. President, it's 358 pages, so if I could ask

19     build Cule's assistance in finding the right page in the report, that

20     would be great.

21             JUDGE ORIE:  Yes, of course.

22             MR. MISETIC:  And the second thing just for -- just to be

23     cautious, the report itself, Croatia has made confidential so that we

24     don't discuss it in public session.

25             JUDGE ORIE:  Yes, it is mentioned by Mr. Cule, and I think merely

Page 26096

 1     mentioning it might not be prejudicial, but -- it's the -- if it's

 2     confidential, then it's the interests of the Republic of Croatia which

 3     are in the foreground so ...

 4             Mr. Misetic.

 5             MR. MISETIC:  Yes, I'm -- I'm confused --

 6             MR. CULE: [Interpretation] Please allow me before we go on.

 7             The document has been taken from me.  I thought that it was for

 8     the needs of the Court.

 9             JUDGE ORIE:  Well, what we wanted to do, as a matter of fact, is

10     to invite Mr. Misetic to check in that document whether he finds the

11     names of any other members of his team, and then it will be returned to

12     you.

13             MR. MISETIC:  Yes, but Mr. President, I obviously have a

14     problem --

15                           [Trial Chamber and legal officer confer]

16             MR. CULE: [Interpretation] I think as far as I have seen from

17     this report, which has three or four pages, only one person is mentioned

18     as a possible former member of a lawyer's team.  There is only one person

19     with such a note in this report, but we can see that immediately when

20     Mr. Misetic has it now and is reading it.

21             MR. MISETIC:  Mr. President, I see two members of my team and a

22     third former member which is consistent with what happened on Wednesday.

23             I also note that the report is -- the caption of the report is

24     the same that was filed on the 9th November, but the information in this

25     report contains information about what happened on Wednesday as well as

Page 26097

 1     the 7th of December.

 2             So this appears to be something that is not yet filed with the

 3     parties in this case.

 4             JUDGE ORIE:  The first purpose, that is, to identify whether

 5     there are more members of the Gotovina Defence team involved, is herewith

 6     served.

 7             I invite to you give it to Mr. Usher so that it can be returned

 8     to Mr. Cule.

 9                           [Trial Chamber and legal officer confer]

10             JUDGE ORIE:  Mr. Misetic, I do not know how familiar you are with

11     the composition of the Markac Defence team, but whether you found any

12     one, because we have a kind of a -- of a subsidiary concerns.  But

13     perhaps that could be resolved also during the break.

14             MR. MISETIC:  I would not speak for the Markac Defence,

15     Mr. President, because I don't know all of their members.

16             JUDGE ORIE:  No, but that seems to be less on the foreground at

17     this moment.  But I just do not want to forget about the interests of the

18     Markac Defence.

19             MR. KUZMANOVIC:  Thank you, Your Honour.

20             JUDGE ORIE:  Now, we have -- I have a few more questions.

21             16 searches of homes and businesses, as was reported.  I

22     understood that to be the searches conducted a couple of days ago.

23             Now, homes and businesses, were that homes of any members of the

24     Gotovina Defence team, were they included, and if so were they also homes

25     and businesses of persons not being members of the Gotovina Defence.

Page 26098

 1             MR. MISETIC:  Yes, I just say --

 2             JUDGE ORIE:  Mr. Cule, if you would not mind Mr. Misetic, when he

 3     is on his feet, it usually helps us, so, therefore, I don't want to be

 4     rude to you, but first before asking you to answer the question to hear

 5     what Mr. Misetic could add.

 6             MR. MISETIC:  Just -- I'm sorry to interrupt, Mr. President, in

 7     light of the witness's -- again, I'm sorry, in light of Mr. Cule's last

 8     response, he may not be aware of two of the individuals on the list.  So

 9     in addition to Mr. Ivanovic, we assert that Jozo Ribicic is a member of

10     the Gotovina Defence and Mr. Hucic is a former member of the Gotovina

11     Defence.

12             JUDGE ORIE:  Yes.  You would say that allows -- that enables

13     Mr. Cule to answer the question.

14             Were there -- were the homes and businesses of Mr. Ribicic and, I

15     think it was Mr. Hucic, are they on the list as well?

16             MR. CULE: [Interpretation] I have the information of the persons

17     that have been mentioned as members of the Defence team, in addition to

18     what is mentioned in relation to Marin Ivanovic, the search of the

19     apartment of Zeljko Hucic has been carried out at the address in Zagreb,

20     a certain address in Zagreb, and also of the persons who are listed, the

21     search of the home, to call it that way, of Mr. Jozo Ribicic in Split, in

22     Simiceva street, and on that occasion, his personal computer was also

23     seized.  And on the basis of a separate order of the investigative judge,

24     the computer was also searched.  To make this additionally clear, another

25     separate judge's order is needed for a computer search to be conducted.

Page 26099

 1             As for other searches and other premises, I do not have

 2     information whether any of these persons are members of any Defence

 3     teams.

 4             JUDGE ORIE:  Yes.  Or related to them, because I heard that the

 5     parental home of Mr. Ivanovic was searched as well.  So it might be

 6     difficult at this moment to identify if there are any further family

 7     relations involved.

 8             MR. MIKULICIC:  Your Honour.

 9             JUDGE ORIE:  Yes, Mr. Mikulicic.

10             MR. MIKULICIC:  Maybe I would be of some assistance if I could be

11     able to see the list, just to inform the Chamber whether some of the

12     Markac team members is also ...

13             JUDGE ORIE:  I leave it to Mr. Cule.  If would you be willing to

14     give the list to Mr. Mikulicic, then that might resolve an additional

15     question.

16             MR. CULE: [Interpretation] Thank you, Your Honour.  I have no

17     doubts whether I can provide it to Mr. Mikulicic, because when

18     Mr. Misetic saw it, it would be very dangerous if I did not provide it to

19     my colleague Mr. Mikulicic.

20             JUDGE ORIE:  Mr. Usher, would be please assist in temporarily

21     handing over the document to Mr. Mikulicic.

22             It was explained that in the search of the law firm that a

23     representative of the Croatian Bar Association was present.

24             Could you explain what the role of that is and whether there's a

25     legal basis for his presence during such a search?

Page 26100

 1             MR. CULE: [Interpretation] When a lawyer's office is searched,

 2     one has to meet the requirements of a special procedure.  Namely, a

 3     search of a lawyer's office has to be attended by the investigative judge

 4     who issued the order for the search or another person designated by them.

 5     Likewise, the Bar Association has to be informed, as the Bar Association

 6     is going to send its representative, pursuant to the provisions of

 7     Article 17 on legal profession.

 8             In case the procedure is not followed, the evidence obtained in

 9     such a way would be considered invalid.

10             JUDGE ORIE:  Now, does that procedure apply exclusively when the

11     search takes place in the law firm; or would such a procedure also apply

12     if you find a lawyer on the street with his suitcase?

13             So would it apply to any seizure of matters, which are in

14     possession of a lawyer; or would it be limited to the premises where his

15     office is located?

16             MR. CULE: [Interpretation] The law is clear.  It says when it

17     comes to the search of a lawyer, or a lawyer's office, which implies to

18     the physical search of a lawyer or their office, including vehicles and

19     other such things.

20             JUDGE ORIE:  Does that mean that when the car of Mr. Ivanovic, in

21     which he transported, apparently, orders -- binders, and a -- and a

22     computer, that a representative of the Bar Association was present at

23     that moment as well?

24             MR. CULE: [Interpretation] At the moment when the vehicle

25     property of Marin Ivanovic was seized from him, it was sealed.  And as

Page 26101

 1     far as I know, it was transported on a special truck - I don't know the

 2     exact name of the vehicle - all the way to the police station in Zagreb,

 3     in order to be searched in the prescribed way.  Which means that it was

 4     not searched on the spot and so far the -- the contents of the laptop

 5     have not been searched, since there is still no order for such a search

 6     in place.

 7             JUDGE ORIE:  And what about the apartments of the three members

 8     of the Gotovina Defence team just mentioned?  The searches in their

 9     homes.

10             MR. CULE: [Interpretation] These are private individuals.  And as

11     far as they are concerned, they are subject to the provisions of the Law

12     on Penal Procedure.

13             Whenever such a search is carried out, two persons have to be

14     present during the search, as well as the suspect, and the suspect has

15     the right to the presence of a lawyer.

16             And allow me to explain, because I am afraid that it has been

17     registered incorrectly in the transcript.  When we are talking about

18     private individuals, about individuals who are not lawyers or members of

19     the legal profession, regular provisions of the Law on Penal Procedure

20     are applied in the way that I have just described, which means that only

21     one person of all of those who have been subject of this investigation

22     and searches only one, according to our information, is a representative

23     of the legal profession and that is Marin Ivanovic.

24             JUDGE ORIE:  My next question would be:  Does the legal privilege

25     extend to those who are employed and are directly involved in the work of

Page 26102

 1     members of the legal profession?  Secretaries, such people.  Those who

 2     are assisting the member of the legal profession in his activities, in

 3     his professional activities.

 4             MR. CULE: [Interpretation] Could you please clarify?  Are you

 5     referring to the privileges that are extended to the confidentiality

 6     clause that applies to lawyers?

 7             JUDGE ORIE:  Yes.  My question would be to -- to give an example,

 8     that, if a lawyer asks his secretary to -- or someone else to assist him

 9     in investigations, that person not being a member of the legal profession

10     himself but when he's carrying, for example, notes he has made of

11     interviews with potential witnesses or with the accused, or the suspect.

12             MR. CULE: [Interpretation] I have before me the Law on The Legal

13     Profession and in its Article 17, entitled search of lawyers and law

14     offices, and that Article does not mention anything about the personnel

15     in the lawyer's office.  The Article only explains how lawyers and

16     lawyers' offices will be searched.  But there is one part of the Article

17     that I'm going read from, and I believe that that part will be of some

18     assistance.

19             When it comes to the search of a lawyer or a lawyer's office, the

20     confidentiality and secrecy of documents should not be violated or any of

21     the other objects at the detriment of the parties.  At this moment, I am

22     not aware of the judicial practices as to how should the other persons

23     that you have mentioned in your question should be treated.

24             JUDGE ORIE:  Let's, then, focus, to start with, on the seizure in

25     the law firm and the seizure of matters which were in Mr. Ivanovic's car.

Page 26103

 1             Mr. Misetic, you were on your feet a minute ago.

 2             MR. MISETIC:  Yes just to give you an additional fact concerning

 3     the car.

 4             I am advised by Mr. Ivanovic that the -- I believe there was

 5     reference to military documents in his car.  Mr. Ivanovic advises me that

 6     it's approximately 400 to 500 pages, all of them - every piece of paper -

 7     was an OTP document with an ERN number on it and that the Croatian

 8     authorities were advised.  And as far as I'm concerned, they are still

 9     subject to the Court's 14th July 2006 order.

10             JUDGE ORIE:  Yes, well, as you may have noticed I sought not to

11     further explore at that moment the exact -- the exact -- the content of

12     the material, because that would not lead us, at this moment, very far.

13             Mr. Mikulicic.

14             MR. MIKULICIC:  Your Honour, slight intervention as it refers to

15     the transcript.  Page 28, line 11.  Mr. Cule cited the paragraph 17th of

16     the according law.  And there was a word "stranka" mentioned in the

17     original Croatian language which was translated as parties.  Although we

18     are not in possession like we used to be when witness is testifying, I

19     should emphasise that that word "stranka" in that context should be

20     translated as "client," not parties.

21             JUDGE ORIE:  Yes.  Whereas it also has the meaning of party,

22     "stranka," because I remember the name of one of the permanent parties in

23     the former Yugoslavia to contain the word "stranka" in its title.

24             Thank you.

25             Mr. Cule, you said that searches should not violate the legal

Page 26104

 1     privilege.  Now, who decides what falls within the scope of privileged

 2     material and is not within the scope of the privileged material?

 3             MR. CULE: [Interpretation] The results of the

 4     research [as interpreted] or the result of the investigation and

 5     everything that has been seized is in the hands of the court.

 6             On several occasions, during each procedure the court takes

 7     decisions on the validity of the evidence, and any of the parties may

 8     challenge the validity of the search warrant, the minutes of the search

 9     that was carried out, or the record of such a search.  And it will be the

10     Court that will eventually make the decision on the validity of any of

11     the evidence.

12             There's also the right to appeal against all that, and any such

13     appeal, again, is decided by the court.

14             JUDGE ORIE:  Yes.  Now, if the court decides on the validity of

15     the evidence, may I then take it that the parties, both parties, have

16     access to that material already before the court gives any decision on

17     that?

18             MR. CULE: [Interpretation] I'm not sure that I understood the

19     question properly.  I will still answer, and then if there is something

20     missing from my answer, I suppose will you have additional questions.

21             The search warrant, before any action is taken, is handed to the

22     suspect in question and to his legal representative, if he has one.

23             The record of the search is signed, or not, if he doesn't wish to

24     sign it; the suspect, as well as the two persons who were present during

25     the search, and also the record is handed over to the suspect once it is

Page 26105

 1     signed.  Which means that throughout the entire procedure -- I suppose

 2     that I have misunderstood the question after all.

 3             JUDGE ORIE:  Yes, I would like to focus my question.  Perhaps by

 4     way of an example.

 5             You enter a law firm.  You seize five binders.  Now the lawyer

 6     present says, Three out of these five is material which falls within the

 7     scope of my legal privilege; that is, it is stuff I can confidentially

 8     communicate with my clients and that is the stuff you will find in these

 9     three binders.  Binder number 1 are some articles I've ever written.

10     Binder 2 is my bookkeeping.  But these three, are privileged.

11             Who then decides who looked into those binders to decide whether

12     or not they should be exempted from seizure?  Because seizure would, or

13     might violate, the legal privilege.

14             MR. CULE: [Interpretation] I must admit, that I have never been

15     in a similar situation.  When a search of a lawyer or his office takes

16     place, a judge has to be present.  And always when a judge is present

17     during an investigative procedure, such as, for example, the site

18     investigation of a traffic accident, the judge has the final say.

19             If the judge says that something will not be seized, or that

20     something will not be carried out or done, I'm sure that it will not

21     happen.

22             JUDGE ORIE:  Yes.  But the mere presence of a judge, of course,

23     is not yet an answer to the issue.  You said it never happened to you.  I

24     must admit, that, in my past, I have been present during some searches

25     and it's not easy, especially in a law firm where you could expect a lot

Page 26106

 1     of confidential communication to be in almost all of the files, to

 2     identify what is protected by legal privilege and what is not protected

 3     by legal privilege.  The mere fact that a judge is there, who, I take it,

 4     will not be able to go through the hard disks of all these computers, who

 5     will not be able to go through all these files and read them all in all

 6     -- in order to find out what is privileged material or not.

 7             So, therefore, I hear your answer, but I still do not fully

 8     understand, unless the situation is that a judge says, Well, is this

 9     privileged?  We leave it here, because you say so.  Or, is it privileged

10     we'll, nevertheless, take it with us, because we could not just rely on

11     what are you're telling us.

12             I mean, the mere presence of a judge might not be the clue to

13     a -- to a observance of legal privilege in detail.

14             MR. CULE: [Interpretation] The presence of a judge also means his

15     duty.  A judge provides the ultimate guarantee that a law will be

16     observed.  A judge does not make his decision based on what somebody

17     says, but, rather, based on his own judgement about everything that he

18     has learned so far.

19             This is, indeed, a very difficult and hypothetical question as

20     well.  And I believe that only a person who participated in an

21     investigation on site is in a position to tell you why they reached a

22     certain decision and why not another decision.

23             JUDGE ORIE:  Yes.  I'm rather not talking about -- not taking

24     responsibility for decisions.  I'm mainly talking about impossibility of

25     checking a hard disk within perhaps even one day.  That's my concern,

Page 26107

 1     that if you would, in detail, review, whether a matter falls within or

 2     outside the scope of a legal privilege, that that's perhaps very

 3     difficult to be done on the spot.

 4             MR. CULE: [Interpretation] I believe that that is one of the

 5     reasons why a representative of the Bar Association has to be present as

 6     well.

 7             JUDGE ORIE:  I earlier asked you what exactly his role was.  I do

 8     understand that it's the judge who decides.  What is the role of the

 9     representative of the Bar Association?

10             MR. CULE: [Interpretation] I suppose that -- that he has to be

11     there as professional colleague who can also set boundaries of

12     confidentiality, and in that way, assist the judge, as it were.

13             JUDGE ORIE:  Yes.  Do we find the specific provisions for search

14     in law firms environment or lawyers?  Do we find them in 211, 213, and

15     214?  Because you quoted -- you mentioned these articles although it was

16     not entirely clear to me whether these articles were the specific ones to

17     protect privileged information or whether they were the articles which

18     would, in a more general way, give the proceedings -- give the procedure

19     for search and seizure.

20             THE INTERPRETER:  Microphone for the ...

21             JUDGE ORIE:  Could you --

22             MR. CULE: [Interpretation] The Law on Penal Procedure explains

23     the so-called regular procedure.  And there is a special law, the Law on

24     Legal Profession, in its Article 17, which regulates the way searches are

25     carried out of a -- lawyers and their offices.

Page 26108

 1                           [Trial Chamber confers]

 2                           [Trial Chamber and registrar confer]

 3             JUDGE ORIE:  Could anyone, either you, Mr. Cule, or any of the

 4     parties, assist the Chamber in providing Article 17 of this law?

 5             It may be that --

 6             MR. CULE: [Interpretation] I have it on me.

 7             JUDGE ORIE:  Well, if you could -- I take it that you have it in

 8     your own language?

 9             MR. CULE: [Interpretation] I will check.  I may have it in

10     English as well.

11             JUDGE ORIE:  Thank you, Mr. Cule.

12                           [Trial Chamber confers]

13             MR. CULE: [Interpretation] Unfortunately, I don't have it in

14     English.  I have it only in Croatian, and I'm sorry.

15             JUDGE ORIE:  If, nevertheless, you could provide it to us, and I

16     take it that you have it electronically.  But there are ways to send it

17     to the Registry perhaps so that we will find a solution for that -- a

18     practical solution for that soon.

19             MR. CULE: [Interpretation] Well, I can do it this very moment, if

20     somebody has a memory stick.

21             JUDGE ORIE:  Anyone, or have you all lost your memory sticks as

22     is the tradition in many legal environments.

23             MR. MIKULICIC:  Your Honour, I found it on the Internet, on the

24     web site, and I can send the link to Mr. Registrar so that will help.

25             JUDGE ORIE:  Then we have it from two sources.

Page 26109

 1             Nevertheless, thank you, Mr. Cule.  But they've all lost their

 2     memory sticks.

 3             There is a very specific problem in the present context, which is

 4     the following.  From your words and from the context you have described,

 5     I think we could not exclude for the possibility that you have in the

 6     back of your mind that if you would find in any of the seized materials,

 7     any document the Prosecution is seeking, that you will consider to hand

 8     that over to the Tribunal.

 9             Is that correctly understood?

10             MR. CULE: [Interpretation] Yes.

11             JUDGE ORIE:  This creates the very specific problem of whether

12     the guarantees, the guarantees not to violate what is within the scope of

13     legal privilege, whether that would be construed and is regulated in

14     Croatia in the same manner as the ICTY would -- would construe, in

15     procedural terms, what the obligations are.  That is, who defines what is

16     privileged; what are the consequences of any violation of legal

17     privilege.

18             It is, as a matter of fact, a problem which is known from the

19     past, that if obtaining evidence or transferring evidence from one

20     jurisdiction to another is at stake, that the question arises whether the

21     rules are congruent, or are not congruent, which may have an effect on

22     the use of evidence.  I'm expressing myself in very general terms at this

23     moment.

24             I'm asking this, because it may be clear that, as you reported,

25     you have done whatever you're supposed to do under Croatian law.  At the

Page 26110

 1     same time, it may be that the Tribunal would require more - we still have

 2     to consider that - or less, if it ever comes to transferring any such

 3     material to the Tribunal.  I'm not asking at this moment a very concrete

 4     answer, but would the Republic of Croatia consider to temporarily freeze

 5     all the material which is seized and further discuss with the Tribunal

 6     whether any additional checking, any additional check, on the possibility

 7     of a violation of legal privilege would take place?  For example, it's --

 8     it's a matter which has not been further explored, but I'm just trying to

 9     understand, for example, to give a role to -- give a role to the panel

10     which deals with such -- well, at least -- who deals with matters in

11     relation to the functioning of the legal profession before this Tribunal.

12     I'm referring to -- I'm asking you, whether, for example, an involvement

13     of the advisory panel which consists of five members appointed by

14     national bar organisations, or four out of them being appointed by the

15     International Bar Association and the Union Internationale des Avocats,

16     whether -- would you be willing to consider a check on any violation of

17     confidentiality?

18             I can imagine that you do not have immediately an answer, but is

19     that something to which you say no -- there's a no, this is not something

20     we could consider or -- and that would then, of course, first require

21     that that no further activity would then be undertaken in relation to

22     that material, that it should be sealed, as the one computer is already

23     sealed, and then to wait for a while and to see whether a procedure could

24     be worked out which would satisfy not only Croatian law but also -- and I

25     must say, underdeveloped law in this respect in this Tribunal, because we

Page 26111

 1     do not have much case law on this.

 2             THE INTERPRETER:  Microphone, please.

 3             JUDGE ORIE:  If you could say I would like to consider this

 4     during the break, then the question has been put to you.  We need to have

 5     a break anyhow soon, and it may that you want to consult with whomever.

 6             So but that question is -- is then there.  If you would need

 7     further information about the composition of the advisory panel -- and

 8     I'm not saying that the advisory panel would consider this to be within

 9     their responsibilities, but at least the thought has come up for any

10     procedural solution for the problem I just described.

11             And, of course, I'm also inviting the parties, and you could then

12     include any responses to such a question by the parties when considering

13     to answer my question.

14             Mr. Misetic, I have -- I have -- as a matter of fact, I've got

15     two questions for you.  First of all, one question is for the

16     Prosecution; the other is for you, Mr. Misetic.

17             Would you agree, or would you consider if evidential material,

18     material which may have been material to the commission of an offence, is

19     kept by counsel or in his -- in the premises of his law firm, that that

20     would be inappropriate to keep it there, where it would be shielded

21     against search and seizure.

22             MR. MISETIC:  Your Honour, I understand, but I think my position

23     is that that question depends on from what perspective you approach it.

24     I think it's fundamentally clear that lawyers generally cannot engage in

25     crime and that there should be procedures in place so that --

Page 26112

 1             JUDGE ORIE:  I'm not talking about lawyers being engaged in

 2     crime.

 3             Let me give a simple example.  A client comes and -- has the

 4     knife with which as was -- as he was suspected to have done, with which

 5     he had killed his neighbour six weeks ago, comes and says, Could you

 6     please keep this for me.  It's evidence.  We shouldn't lose it.  Keep it

 7     in your office.

 8             Then, of course --

 9             MR. MISETIC:  You cannot -- you absolutely cannot keep that.

10             JUDGE ORIE:  You cannot keep that.

11             MR. MISETIC:  In my submission, and as far as I understand, the

12     ethical duties in my own jurisdiction, no you cannot, that circumstance,

13     keep the weapon and conceal it.

14             JUDGE ORIE:  And that is because it is important evidence for --

15             MR. MISETIC:  It is, in some respects, in our jurisdiction, you

16     could consider it obstruction of justice.  It would be -- well, I would

17     argue under our rules here in the Tribunal, a potential Rule 77 contempt

18     proceedings, which is how I was going to -- why I said it depends on from

19     what perspective you approach this.  I believe the Tribunal absolutely

20     has jurisdiction to deal with matters and cases that are in front of it.

21             There is a multiple layer of this which I had hoped and continued

22     to hope to be able to address with the Chamber today --

23             JUDGE ORIE:  We're not ready yet today, Mr. Misetic.

24             MR. MISETIC:  I know.  But the question becomes, is this simply a

25     matter of Croatian law applying its laws to this problem or if, in fact,

Page 26113

 1     it turns out that this is being done pursuant to an organ of this

 2     Tribunal, particularly the Prosecution in this case, then I don't believe

 3     the Trial Chamber can simply relegate it to how Croatian authority will

 4     apply Croatian law because this Trial Chamber is seized with, under

 5     Article 20, sub para 1 --

 6             JUDGE ORIE:  Yes.

 7             MR. MISETIC:  -- applying the rules to both parties in this case.

 8             If there is a reason to believe - and I will state this on the

 9     record - if the Prosecution in this case has information that would say,

10     That the knife is in possession of one of the Defence team, I don't think

11     there is any question that the Trial Chamber can issue an order saying,

12     Produce the knife.  But there has to be some basis -- some evidentiary

13     basis for that.  You can't just then say, I can't establish with the

14     Trial Chamber that the knife is with you, so I'm going to have the police

15     search through your office to see if the knife is there.

16             JUDGE ORIE:  This is all based on highly disputed factual

17     background.  We've heard that we can receive all the correspondence

18     between the Prosecutor's office and since -- at least that is certainly a

19     matter which we will not conclude to look at today.  But you say whether

20     or not one of the parties in the proceedings has triggered or encouraged

21     to -- to seize that material without an order, and if that would be

22     Tribunal parties, that that's your view, that you couldn't then seek to

23     have that seized without -- without any order from the Chamber.

24             MR. MISETIC:  Yes, but, Mr. President, I think we have here a

25     situation:  Mr. Cule has indicated that they got a warrant from a judge

Page 26114

 1     in Zagreb.  I believe for a Defence team at the ICTY, whatever

 2     information was used to obtain the warrant should have been produced to

 3     Trial Chamber for the Trial Chamber then to authorise such a warrant or

 4     such a procedure.  If that is, in fact, the bottom line.  Because if

 5     evidence exists of that, I haven't seen it, and I have repeatedly -- even

 6     on the record what the Trial Chamber said, we have done our own

 7     investigations into this and have not found - and have no reason to

 8     believe that we are in possession of - documents which are sought

 9     pursuant to the RFA at issue here.

10             If there is evidence that would be sufficient for the Chamber to

11     authorise such a search, then I would submit this it should be brought to

12     the Chamber.  The Chamber should review it and should issue an order.

13             JUDGE ORIE:  You would say that apart from -- if the Chamber

14     orders that documents should be produced, or at least should investigated

15     whether they can be found, that, nevertheless, in every time, when -- for

16     achieving that purpose, it would be needed to search in order to be able

17     to seize, that this Chamber should issue always an order in that respect,

18     so that in --

19             MR. MISETIC:  Absolutely --

20             JUDGE ORIE:  -- the Chamber would be involved in the details of

21     the execution of an earlier order.

22             MR. MISETIC:  Well, let me take it step by step.

23             We have a precedent in this case already.  The Prosecution filed

24     a -- essentially a request to produce documents but in the form of a

25     motion seeking an order for us to produce categories of documents that

Page 26115

 1     were there.

 2             The Chamber's ultimate ruling - and I need to be careful here

 3     because ...

 4             JUDGE ORIE:  You say it may be confidential.

 5             MR. MISETIC:  Yes, Mr. President, I'm not positive.

 6             Can we move into private session.  I believe it is confidential.

 7             JUDGE ORIE:  We can move into private session, but we have to

 8     stop because the tapes are running out very quickly at this moment.

 9             What I would like after the break to, first of all, to hear from

10     the representatives of the Republic of Croatia whether any further

11     checking of any seized material, whether that would be debatable.  I'm

12     not in a debate but, at least, what their position would be, and would

13     like to -- of course, the Prosecution also, to think about this

14     possibility, because this -- the problem we have in front of us consists

15     of many, many aspects, and this is one of them on which I would like to

16     focus at this moment.

17             We have to have a break, because, otherwise, our words will be

18     lost forever.

19             Yes, but --

20             MR. CULE: [Interpretation] If I could just say something that

21     would not be in the record, as the Defence attorney said that the

22     Republic of Croatia is only acting on the request of the Prosecutor's

23     office --

24             JUDGE ORIE:  You may say it after the break, but in 15 seconds

25     the tape will be expiring.

Page 26116

 1             And, therefore, we adjourn, and we resume at 4.30.

 2                           --- Recess taken at 3.56 p.m.

 3                           --- On resuming at 4.44 p.m.

 4             JUDGE ORIE:  We have a bit of a late start.  We were informed

 5     that you had a consultation with your government.

 6             Before we continue, I'd first like to put on the record that,

 7     something with the external line feed is not properly functioning.  So

 8     even if it is difficult to have access to these proceedings at this very

 9     moment, reason unknown, there are no conspiracies.  The video of this

10     hearing will be made available anyhow.  Of course, to the extent it's

11     public, and it was entirely public until now.

12             So, therefore, just to put this on the record, that it may be

13     difficult to follow these proceedings at this very moment, but everybody

14     will be made available.

15             One small question to start with.  Mr. Mikulicic, did you

16     identify any person on the list?

17             MR. MIKULICIC:  No, Your Honour, not on that list that was

18     provided to me.

19             JUDGE ORIE:  Yes.  That's, then, on the record as well.

20             Yes, I would to now invite the parties to -- in this case, the

21     Prosecution, to briefly respond to what is the core of what we're dealing

22     with this afternoon.  That is, a -- a kind of freezing order, to say so.

23             If there's any problem with that.  Freezing would mean?  Freezing

24     to further inspect the assets under the -- the seized matters; that would

25     be documents, hard disks, computers, whatever is seized at this moment,

Page 26117

 1     until we have further considered the various aspects of the present

 2     situation, and we are focussing, at this moment, primarily on

 3     client/counsel privilege, as being the first at stake.  Of course,

 4     there's the confidentiality of other material which may be about

 5     protective witnesses.  That is what we're focussing on at this moment.

 6     And we'd like to hear from the Prosecution whether what their position is

 7     in relation to such a motion.

 8             Mr. Misetic, is there any need to further explain?  It may be

 9     clear that freezing just means keeping your options open and see what the

10     next steps would be.

11             MR. MISETIC:  Yes, Mr. President.

12             I rose only because I don't know which would be more efficient.

13     I obviously have -- I would say a 20 to 30 minute response -- a reply

14     both to the Prosecution and the Croatian position, because there are

15     substantial portions with which we disagree and think will put things in

16     the proper context.

17             But, obviously, if there's a specific narrow question that you're

18     asking the Prosecution, that's fine.  But, especially in light of how the

19     first session went, I think there is -- are broader issues that need to

20     be raised with the Chamber.

21             JUDGE ORIE:  Yes.  Now, the Prosecution has responded in writing

22     to the first written motion.  What I'm seeking at this moment is

23     specifically the position of the Prosecution, which is not primarily

24     about who triggered what because that is -- that is dealt with, whether

25     satisfactorily or not is a different matter.  The parties may have

Page 26118

 1     different views on that, but that's dealt with in the filing we received

 2     this morning.

 3             At this moment, I'm primarily now seeking the position of the

 4     Prosecution to -- for this moment to issue an order, and that's what was

 5     asked, whether we'll do it or not, Mr. Ambassador, is still to be

 6     considered by this Chamber, but what the Prosecution's position would be,

 7     that at this moment, the -- this material, that is documentary material

 8     and other material, would not be further inspected until further order,

 9     and then we would, of course, look rather quickly to all the remaining

10     elements of which we have dealt with only in a very limited way until

11     now.

12             And just to say there, of course, there may be several aspects in

13     this as well.  That is, is it within our competence, within our

14     jurisdiction, if you have any views on that, why it would be or would not

15     be, of course, the Chamber would like to hear, and, of course, the

16     substance of the order itself.

17             MR. TIEGER:  Well, Your Honour, I thank you.  I'm going to begin

18     with the narrowest possible response, and we'll take it from there, I

19     think.

20             And that is, from the Prosecution's point of view in -- in terms

21     of the instant -- the matter before the Trial Chamber, undertaking what I

22     understand to the court's suggestion from that point of view, that is, do

23     we have an objection to stopping for a brief time, not receiving any -- I

24     mean, from our point of view it would be not receiving any materials.  It

25     wouldn't be anything affirmative or anything, so from the Prosecution's

Page 26119

 1     point of view if we have an objection to not receiving any materials

 2     resulting from the search from Croatia until the court and the parties

 3     have been given an opportunity to address this issue fairly, no, we don't

 4     have an objection to that.

 5             In fact, that's contrary.  We would not want the court to proceed

 6     precipitously in -- in any direction on a significant matter to affect

 7     the rights of either party or the institution generally.  Or Croatia, for

 8     that matter.

 9             JUDGE ORIE:  And you think it would be within the competence,

10     within the jurisdiction of this Chamber to issue such an order?

11             MR. TIEGER:  You know -- [Overlapping speakers] ...

12             JUDGE ORIE:  [Overlapping speakers] ...

13             MR. TIEGER:  I know, exactly.

14             I think as a general matter, Your Honour, from the limited

15     opportunity that I've had to review the jurisprudence, I -- I don't see

16     the -- see it -- necessarily see the Tribunal's competence to make orders

17     with respect to a domestic criminal investigation.  I don't think the

18     Tribunal could order someone, for example, order the Croatian

19     authorities, to investigate a specific person, indict a specific person,

20     prosecute a specific person and soon on.  Now, that's the preliminary and

21     I know that's the spirit in which the Court has made the suggestion.

22             JUDGE ORIE:  Yes.

23             MR. TIEGER:  But I also say I'm not sure that, and before we go

24     down that road and start debating those competences in more limited

25     context, or indeed in broader context, it appears to me that that may not

Page 26120

 1     be at issue here.  I mean, for one thing, if the Prosecution doesn't --

 2     is -- is agreeable to not acceptable material for the limited period

 3     we've discussed until the matter has been thrashed out, I'm a little hard

 4     pressed to see -- I mean, now, you've still got the question of other

 5     forms of dissemination of the material presumably, but I'm not aware yet

 6     that the Court has explored with the Croatian authorities the possibility

 7     of arriving that solution, at that temporary abeyance, absent the

 8     necessity of a formal order and an examination of the competence to do

 9     so.

10             JUDGE ORIE:  Yes, thank you for that answer.

11             You're clear on that you do not oppose against not receiving

12     material for a while.  You're clear on that.  Then, in respect of the

13     competence of this Chamber to issue orders, that's --

14             MR. TIEGER:  Yeah.  We simply haven't done sufficient level of

15     research.  The preliminary indication is as I indicated, but it would be

16     remiss of me to suggest that I a definitive answer to that.

17             JUDGE ORIE:  Thank you for that.  We are all trying to form our

18     opinions on rather complex matters in a very quick way, and I think

19     everyone is struggling with that.

20             Mr. Misetic, could we hear about your struggle.

21             MR. MISETIC:  Mr. President, I believe that -- that the Chamber's

22     jurisdiction to issue such orders is clear under the case law and under

23     the Statute.  And I -- by way of an example explain why.

24             If we take the situation that there is a witness who testified

25     here, let's say, we are aware that the Croatian authorities are

Page 26121

 1     conducting investigations into, let's take, for an example, Varivode, if

 2     a witness has come here and testified with full protective measures about

 3     Varivode, could a Croatian investigative judge compel Mr. Ivanovic to

 4     disclose the name or papers so that that investigation in Croatia could

 5     proceed with more information as to the identity of the witness that

 6     testified, who may have testified with pseudonym and face distortion but

 7     in public and the judge thought there was valuable testimony that could

 8     be gained by this.  I think the answer would be quite clearly no.

 9             The Trial Chamber's orders for protection take precedent.  We, as

10     the Defence, would have an obligation to the Chamber, first and foremost,

11     and couldn't simply say there is a parallel investigation going, and we

12     also have an obligation to, essentially, violate an order of the Chamber.

13             I don't see any material distinction between an order of the

14     Chamber and a rule or the Statute.  In other words, if something is

15     precluded by, for example, the code of professional conduct at the ICTY,

16     that may be lawful, for example, disclosing a client confidence, because

17     an investigative judge in Croatia wants it.  I believe that counsel could

18     be disciplined at the ICTY because we're bounds by the code of

19     professional conduct here.

20             So I believe that the Tribunal in keeping matters directly

21     related to it has the jurisdiction and authority to enforce its own

22     orders, and similarly must have, by implication, the jurisdiction to

23     enforce both the rules and rules which flow from Article 21 of the

24     Statute.  I think the Appeals Chamber's jurisprudence has been clear that

25     the attorney/client and work product privileges flow from the accused's

Page 26122

 1     right under Article 21 against self-incrimination.  If the Chamber did

 2     not have jurisdiction to enforce those rights and rules, then obviously

 3     they're not worth very much, and I think that implicit in the

 4     jurisprudence and in the jurisdiction of the Chamber is obviously the

 5     power to enforce its own orders, rules, and the rights of the accused.

 6             So to that extent we would say that if the Chamber were to find

 7     that both attorney/client work product matters could be disclosed as well

 8     as matters which are currently governed by orderings of the Chamber, and

 9     by way of example, the documents seized in Mr. Ivanovic's car are

10     documents disclosed by OTP to us and which are still under an order of

11     the 14th of July 2006, we would say that obviously the Chamber must have

12     the authority to enforce the 14 July 2006 order as well as the rights

13     guaranteed under the Statute.

14             In terms of -- I appreciate Mr. Tieger's position with respect to

15     information being received by the Prosecution but that still leaves us in

16     the position that persons in Croatia could search the laptop, the hard

17     drives, et cetera, and continue with further investigative steps.  For

18     example, I will disagree with Mr. Cule that one office that isn't related

19     to the Gotovina Defence was searched.  That office is related.  I have

20     been there personally myself.  There is obviously nothing to preclude the

21     Croatian authorities from conducting a search of the second office.

22             So while none of that information ultimately will go to the

23     Prosecution under the position taken by the Prosecution, that still

24     doesn't prevent the injury, because the question is not only is the

25     attorney/client privilege protect from disclosure to the Prosecution, it

Page 26123

 1     protects from the disclosure to essentially to anyone and it should be.

 2             Thank you.

 3             JUDGE ORIE:  Mr. Tieger.

 4             MR. TIEGER:  Well, then, now I have some more thoughts as a

 5     result of this responsive dialogue, Your Honour, and I hope -- and again

 6     the Court needs to let us know when -- and there's a certain level of

 7     brain-storming and spontaneity of this happening.  If you've heard

 8     enough, let me know.  I'm not trying to intrude unnecessarily.

 9             JUDGE ORIE:  No.  If you say that -- you're telling us that you

10     have developed some thoughts, the Chamber is always interested in hearing

11     any thoughts.

12             MR. TIEGER:  No, I -- again, the first thing I was going to say,

13     first of all, we know that the Court has already indicated it should only

14     intrude in exceptional circumstances.  That's fairly consonant with the

15     general rule of least restrictive measures, least intrusive measures.  I

16     don't think that's really at issue.

17             Mr. Misetic is -- seems to be suggesting that where the

18     possibility exists that some violation of confidentiality may occur, the

19     Court should take the measure that it would take in the face of

20     information that it was about to occur or had been occurring.

21             That does not strike me as the least intrusive measure.

22             Secondly, the last example provided by Mr. Misetic seems to focus

23     not on the -- on the -- a general issue of confidentiality not related to

24     materials before this Court but seemingly related to Croatia's

25     investigation to obtain its own documents.

Page 26124

 1             Now, first of all, I don't think this Court has a particular --

 2     has particular standing or interest to supervise the practices of

 3     judicial systems generally for their own purposes.  So where this matter

 4     strays into areas of investigation that are being pursued by Croatia

 5     under its own domestic jurisprudence by Croatian officials under Croatian

 6     law to seek Croatian documents, that's a separate matter.  The question

 7     is at what point does the court's interest in the -- the privilege take

 8     hold.  And I think it's also important just to note in connection with

 9     the issue of least intrusive measures that the Court has indeed been

10     focussing on concerns that it would -- that confidentiality would be

11     breached and the Court would receive information that was a fruit of that

12     effort.  It seems to me the first step in determining whether there is a

13     systematic risk of that occurrence is to -- would to be review or

14     consider the standards of the jurisdiction in which the investigation is

15     or has taken place.  From what we've heard today, those standards seem

16     extraordinarily high.  Took a quick glance at Article 17, subsection 5,

17     that focuses, for example, on the fact that the investigative materials

18     that are seized, and I don't have it -- let me just read that out.

19             "The search of an attorney or law office limited to the

20     examination of only those documents and objects that are --"

21             THE INTERPRETER:  Mr. Tieger would you kindly --

22             MR. TIEGER:  Sorry.  "The search of an attorney or law office

23     certainly or a law office shall be limited to the examination of only

24     those documents and objects that are directly connected with the criminal

25     act that is the ground for the proceedings."

Page 26125

 1             Now, in that connection, Your Honour, I think it is important to

 2     note the nature of the material that is at issue here vis-a-vis the

 3     Tribunal.  We are -- the confidential information and the best examples

 4     of confidential information that we have focused on in the hearing have

 5     been, for instance, e-mails.  I think it's -- it's -- that's an issue

 6     that's addressed by this provision that's dramatically and obviously

 7     distinctive matter from the kinds of materials that are the focus of this

 8     case.  So the -- when there's no evidence of either a systematic -- as a

 9     weakness, or an absence of attention to the issue of attorney/client

10     confidentiality, and, furthermore the nature of the material involved

11     does not appear to give rise to a dramatic prospect of confusion, then I

12     would suggest that the need for dramatic measures is seriously decreased.

13             So I wanted to bring those matters to the court's attention.  I

14     also wanted to mention, if I may, the fact that there are many options

15     available.  I know the Court is trying to solicit from the parties any

16     number of them, but I felt we have to begin with the option that exists

17     in the Tribunal now, which is essential Rule 95, which has at a minimum

18     the strength of becoming operative at a moment when matters become ripe

19     and not before.  For example, no documents may turn up that are relevant

20     to the inquiry of -- that this Chamber has made, and no documents may be

21     submitted to the Prosecution or the Chamber, in which event the

22     consideration of some -- imposing some systematic mechanism for

23     addressing that in advance would seem both premature and unnecessary.

24             Now that -- I'm not suggesting that Rule 95 may address all of

25     the court's concerns, but in trying to resolve this issue, I think we

Page 26126

 1     have to begin with all of the possibilities and consider both why they

 2     exist, what advantages they have, what problems they may not resolve.

 3             JUDGE ORIE:  Mr. Tieger, would you agree with me that we are

 4     still in the process -- not we, but that the process of obtaining the

 5     evidence has not been finished I didn't tell.  I mean, we see that some

 6     materials are still under seal.  I take it that even where it -- leave

 7     was granted to inspect hard disks that it may take a while before you

 8     looked at all of it.

 9             So if you say it's premature, would you disagree with me that it

10     may be wise, already at the time of obtaining the information, to take

11     proper care that nothing goes wrong or goes any further wrong which would

12     finally result in the application of Rule 95.

13             MR. TIEGER:  I think understand the Court's concern.  And that is

14     if you can avoid either a Rule 95 issue and particularly avoid the

15     possibility that the Court may not receive evidence it could receive,

16     because of the provisions of Rule 95 it would be a great idea to avoid.

17     And so that's why I didn't stand firmly on Rule 95.

18             JUDGE ORIE:  No.  But you --

19             MR. TIEGER:  One thing I do.  Sorry to interrupt.

20             JUDGE ORIE:  No.

21             MR. TIEGER:  I know the Court suggested a measure.  Again, I take

22     that in the spirit of this proceeding, the effort to identify potential

23     solutions and find a way through this.  But what occurred to me in

24     connection with the one suggestion that the Court made is that with

25     respect to any solution that undertakes to deal with the material before

Page 26127

 1     it's received or while the investigation is proceeding, I think the Court

 2     has to be -- has to take care not to undercut the involvement of those --

 3     of those bodies best placed or the ultimate responsibility of those

 4     bodies best placed to make those decisions is the judicial authorities of

 5     Croatia where the matter rests now, and the Tribunal.  I mean, the Trial

 6     Chamber has to remain the ultimate decision-maker about the admissibility

 7     of evidence vis-a-vis the Chamber and about the -- the -- about whether

 8     or not documents that are tendered to it or, in this case, we're talking

 9     about that may be tendered to it, have been acted accordingly.

10             So my reaction - and I offer this again, in the spirit it was

11     suggested - to the suggestion made by the Court is to focus on the need

12     for the Tribunal to remain in control and not -- not advocate in any way

13     to an intervening body.

14             I think the Court is searching for some prophylactic to minimise

15     the risk that a Rule 95 issue will arise.  It's for that reason that

16     we've been prepared to accept the freeze in the nature the Court

17     suggested, but I don't know that we're in a position to identify the

18     precise mechanism at this moment.

19             MR. MISETIC:  Mr. President.

20             JUDGE ORIE:  Before I give you an opportunity, and you,

21     Mr. Kuzmanovic, to make further submissions.

22             I would like to emphasise that this Chamber is not trying to save

23     evidence so that it would not have to exclude it under Rule 95.  One of

24     the primary concerns of the Chamber, of course, is a violation of what is

25     an important matter, that is, client/counsel privilege.  Therefore, that

Page 26128

 1     may have an effect, of course, violations of important principles may

 2     lead to all kind of consequences, as is set out almost in all the cases,

 3     the European Court of Human Rights dealt with in this respect.  They

 4     always say, apart from the importance of sometimes not interfering with

 5     private lives, sometimes not interfering -- and not -- but also in the

 6     context of Article 6 of the European Convention on Human Rights that it

 7     has the two aspects:  The first is observing the confidentiality and the

 8     second is the possible consequences in criminal proceedings.

 9             I just wanted to emphasise that certainly the first aspect is not

10     any less on the mind of the Chamber than the possible consequences.

11             MR. TIEGER:  I fully understand, Your Honour, and I want to

12     emphasise we share that as well, and I hope my remarks didn't suggest

13     otherwise.  I agree that provisions of the Rule 95 are not just for the

14     purpose of preserving evidence, but to ensure as much as possible that

15     the underlying violations don't occur.

16             JUDGE ORIE:  Mr. Misetic.

17             Mr. Kuzmanovic, you were on your feet as well, if that was just

18     for a short submission.

19             MR. KUZMANOVIC:  It's very short, Your Honour.

20             JUDGE ORIE:  Yes.

21             MR. KUZMANOVIC:  Thank you.

22             I think we really need to get back to what the practical issue is

23     here.  The practical issue is attorney materials were seized from an

24     attorney in his office that are connected with the Defence in this case.

25     They were seized by the Croatian government.  They would not and I

Page 26129

 1     think -- I think it's disingenuous to say that this is not being done as

 2     a result of the search for the so-called artillery diaries by the

 3     Croatian government, because if that wasn't the case, we wouldn't be

 4     here.  The sole reason for these searches and these investigations are

 5     claims to be that Croatia wants to obtain its own documents.

 6             Well, the reality is, is it wouldn't be conducting this, had it

 7     not been at the cooperation and suggestion and working essentially hand

 8     in glove with the Office of the Prosecution to try to find where these

 9     documents supposedly are.

10             So I think it's very telling that the fruits of the search

11     potentially, whatever those might be, from seizing computers and invading

12     an attorney's office, would be potentially turned over to the Prosecutor

13     are very grave.  And that's really the issue.  Are the fruits of these

14     searches, first of all, searchable and seizable, and second of all are

15     they able to be turned over to the Prosecutor?  And my question to those

16     two questions is know.

17             And when the Prosecutor tells us that, Well, we don't object to

18     obtaining any documents which potentially would -- I'm assuming would be

19     the result of these searches and seizures, that's very troubling to me.

20     I'm glad that they don't want to obtain those documents, but the fact

21     that they are seeking them potentially those documents is very troubling

22     because those documents potentially are privileged, and I -- that's --

23     that's what I wanted to say.  It is not simply the Croatian government

24     conducting a search for these documents simply because they're -- they

25     belong to the Croatian government.  None of this, I can guarantee, you

Page 26130

 1     none of this would be going on had there not been an RFA or consistent

 2     pressure applied on the Croatian government by the Office of the

 3     Prosecutor to produce these documents.  None of this would be occurring.

 4             That's my point.  It's a very common sense approach.  The Court

 5     can freeze, and I believe should freeze, any fruits of this search from

 6     going outside to any other party, including the Croatian government, and

 7     including any -- certainly the Office of the Prosecutor.  Those are

 8     privileged documents.  What is contained in those documents, we don't

 9     know, and I think that's very troubling that you know --

10             JUDGE ORIE:  Mr. Kuzmanovic, you earlier said they are to

11     potentially privileged.  Now, you say they are privileged.  I earlier

12     raised with Mr. Misetic the issue as to what is covered by the privilege,

13     whether that would cover also evidence, evidential material, which is --

14     is still sought.  We had the discussion about the knife.  I wouldn't say

15     that artillery documents are knives, but at least you -- your statements

16     are, first of all, they're changing quite quickly from potential --

17     potentially privileged to privileged.  And the second issue, which have

18     you not addressed, is the matter which I raised with Mr. Misetic, as to

19     whether evidence which is sought and perhaps cannot be attained

20     elsewhere, whether that should be protected from search and seizure by

21     being in a law firm.

22             That -- I'm not saying that I -- the one or the other is true,

23     but I'm just saying that these detail, at least, were not -- were not

24     dealt with in your brief submission.

25             MR. KUZMANOVIC:  I appreciate that Your Honour and I think the --

Page 26131

 1     have you to go under the presumption that it is privileged because we

 2     don't know what's in that.  I think the presumption has to be that the

 3     documents are privileged because --

 4             JUDGE ORIE:  Isn't it true that there is the whole of the

 5     problem?  If not in this case, but in general.  How to identify

 6     whether -- and that's the case law of the European Court of Human Rights,

 7     again and again emphasises that on the one hand a respect for privilege

 8     would be a reason to be abstain from any searches and seizures; on the

 9     other hand, that there may be a legitimate interest in trying to obtain

10     evidence which may be found in the premises of law firms.  And then, of

11     course, you wouldn't do that easily, and then who is going to find out

12     whether it is or it is not?  Who is abusing?  Is it the Prosecution who

13     is abusing its powers for search and seizure, or is it the Defence, and I

14     put the question as neutral as possible.  Or is it the Defence who has in

15     its law firms evidence which should not be in that law firm.

16             I'm not expressing any opinion on what it is, but I'm just trying

17     to -- to clearly give a picture of what the problem is, and then this is

18     further complicated here because we are dealing with two jurisdictions,

19     the one acting on its own and at the same time in a position that it has

20     an obligation to assist the other jurisdiction.  Then, apart from that

21     further allegations, that inappropriate behaviour is involved as well.

22     It is a very complex, and the only thing I wanted to say at this moment

23     is that at least some of the very obvious complicating aspects had not

24     been dealt with.  Not to say that I'm inviting to you start all over

25     again, but just to let you know, that these are matters which the Chamber

Page 26132

 1     certainly will have to look at as well.

 2             MR. KUZMANOVIC:  I completely understand that, Your Honour.  I

 3     don't think we still heard today what the factual basis was for the

 4     underlying search of Mr. Ivanovic's vehicle, computers, and office.  We

 5     haven't heard what fact had been put forth for that.  And I think that's,

 6     you know, what are those facts?  We still don't know what they are.

 7             MR. MISETIC:  Mr. President.

 8             JUDGE ORIE:  Yes, there are certain facts not known to us, and

 9     we'll, first of all, have to consider what exactly the relevance is for

10     decisions to be taken and then how to establish such facts, if there is

11     any need to do so.

12             Mr. Misetic, I kept you waiting for quite a while.  Now it's your

13     turn.

14             MR. MISETIC:  I'm going to try to respond to everybody in a

15     omnibus fashion.

16             But, first, I would state that I don't belive the injury is a

17     potential injury in the sense that we are now speculating about whether

18     there might be an injury, but the mere seizure and the search in and of

19     itself has triggered the injury, given that, I would submit to you, if

20     the hard drive is searched or since we don't know what's going to happen

21     to the computers and since they're outside of our possession and control

22     at this point, that some remedy needs to issue.

23             Secondly, Your Honour, I would again plead with the Chamber to

24     allow me to address what I think the underlying factual issues are here.

25     We've discussed a lot of the legal issues, but I think to get to the

Page 26133

 1     legal, we need to understand first what are the facts, and I would

 2     appreciate it if I could take us through that.  Because, ultimately, the

 3     facts are what I would argue in rebuttal to Mr. Tieger about this being

 4     something of a domestic issue and the Chamber shouldn't be involved in

 5     supervising the domestic Courts.  We do not accept that this is a

 6     domestic issue.  This is an ICTY issue, started in the ICTY, triggered by

 7     the Office of the Prosecutor, and instigated by the Office of the

 8     Prosecutor, at least as to the pure facts that we have, and we believe we

 9     with prima facie show that.  Now --

10             JUDGE ORIE:  One second, please.

11                           [Trial Chamber confers]

12             JUDGE ORIE:  I get a message that the server crashed.  Which

13     means no LiveNote, no ... well, I see at least something moving on ...

14                           [Trial Chamber and registrar confer]

15             JUDGE ORIE:  Everything will be recorded by our access to our own

16     LiveNote and Lotus Notes; that is, that we cannot make in e-court any

17     notes or whatever, so our personal accounts connected to e-court are not

18     functioning at this moment.  But we can proceed under those

19     circumstances, because the mainstream is still functioning.

20             MR. MISETIC:  Yes, and in light of the fact that nothing is

21     working, Mr. President, I propose that I entertain us for about half an

22     hour with a ...

23             JUDGE ORIE:  Yes, and we have considered that.  I consulted my

24     colleagues on the matter.

25                           [Trial Chamber and registrar confer]

Page 26134

 1             JUDGE ORIE:  The Registrar informed me that the records will be

 2     available completely despite all the problems we have, and this is again

 3     ensured by our transcriber, who provides us with the transcript.  Video

 4     and audio will also be available at the very end.

 5             Under those circumstances, the Chamber prefers to proceed and not

 6     for the mere fact that we cannot use the system as we usually do,

 7     Mr. Misetic, the Chamber highly appreciates your entertaining capacities,

 8     but has decided that you may briefly address these matters.  But since

 9     there is a lot of factual dispute about this, the Chamber does not want

10     to end up in a situation where these facts, without having even a

11     possibility to hear any further evidence on that matter, if we would want

12     to hear that evidence.  So, therefore, you can briefly address these

13     matters.  You can point to some key factual elements you consider to be

14     established even where it's disputed, but we want to avoid that we have a

15     lengthy debate on what happened and what did not happen exactly in the

16     communications between the Republic of Croatia and the Office of the

17     Prosecutor.

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

19             JUDGE ORIE:  I'm not keeping you totally out of the field, but I

20     hope you understood.

21             MR. MISETIC:  I will advise my colleagues on the Prosecution's

22     side that I believe for purposes of this hearing that the issue is not

23     whether in fact it's confirmed what we say is true nor does the Chamber

24     have to reach that conclusion in order to provide temporary relief.  I

25     don't think that's the standard and, therefore, obviously the Chamber

Page 26135

 1     does not have to ultimately accept this as true because there can be

 2     further hearing and argument on this point.

 3             But the point has been raised by the Prosecution in its response

 4     that we have not established a factual basis both for the relief and the

 5     second issue, which we haven't touched on today, which is whether

 6     Mr. Brammertz should personally be present on Wednesday, and I will try

 7     to wrap that all up into this submission.

 8             JUDGE ORIE:  Briefly, as I said.

 9             MR. MISETIC:  I will try, Mr. President.

10             I would first -- if we can move into private session because I'm

11     going use some confidential documents.

12             JUDGE ORIE:  We move into private session.

13                           [Private session]

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 26136











11  Pages 26136-26147 redacted. Private session.















Page 26148

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14                           [Open session]

15             THE REGISTRAR:  We're back in open session, Your Honours.

16             JUDGE ORIE:  Thank you, Mr. Registrar.

17             Mr. Ambassador, Mr. Cule, you have heard a lot.  I would invite

18     you to make submissions on two matters.

19             The first matter would be your position in relation to the

20     sought-- the order sought by the Gotovina Defence, which I will refer to

21     as the freezing order, that is to be understood that you would

22     discontinue further inspection of the seized material.  That is not

23     further look at the document, not further look at what is on the hard

24     disks, et cetera.  So just make a pause in that respect.  That is one.

25             If you would be include into that, whether without an order you

Page 26149

 1     would be willing, on a temporary basis, to do the same, we would like to

 2     hear that from you.

 3             And the second issue, I would like you to perhaps briefly address

 4     what your position would be in trying to seek procedures which would

 5     allow for a detailed review of whether there is, in the material which

 6     was seized, whether there's any material in that, which would be covered

 7     by client/counsel privilege, by professional privilege, and if you would

 8     agree in trying to seek such procedures.  We have no time and no

 9     possibility at this moment to work them out.  I take it that -- that we

10     would then start with that.  If you would be inclined to do so, we would

11     start exploring that and seeing whether any agreement can be reached on

12     Monday but that, of course, would suggest that, meanwhile that you would

13     wait for -- for the results or at least until a further moment and not

14     just continue to inspect all that material because then, of course, such

15     agreement on verifying whether there is any privileged material in there

16     would not be make that such sense.

17             Mr. Cule, will it be you, or will it be you, Mr. Ambassador, to

18     deal with these matters.

19             MR. CULE: [Interpretation] Thank you, Your Honour.  I will be

20     glad to begin answering the question, and the Ambassador, I suppose, will

21     conclude.

22             I will briefly answer to the questions you asked me and please

23     allow plea to answer some of the things that occurred in what Mr. Misetic

24     and Mr. Kuzmanovic mentioned because I did not have an occasion to answer

25     to these remarks, and I think it's important to respond to that.

Page 26150

 1             JUDGE ORIE:  When I give you an opportunity to respond to the

 2     order sought by the Gotovina Defence, that, of course, would include that

 3     you further comment on what has been submitted in relation to that issue.

 4             So feel free to do that.

 5             MR. CULE: [Interpretation] Thank you.

 6             To simplify matters maybe everything will be simpler after what I

 7     am going to say now.

 8             In the Republic of Croatia, it was very seriously taken not as

 9     Mr. Misetic said the order of the OTP but the order of the Trial Chamber

10     of the 16th of September 2008, that this order be complied with.  And

11     after the documents were seized, the documents that we are discussing

12     today, I was informed during the break that preliminary processing or let

13     me say analysis of this document has already been carried out.

14             Among the documents that have been analysed, there are no

15     documents which have been sought pursuant to this request.  What has not

16     been reviewed, not even preliminarily at this point, is the laptop owned

17     by Mr. Marin Ivanovic.  I said by way of introduction that it's not

18     possible to do that because there is no request to issue such an order

19     and there is no judge's order to that effect.  According to the

20     information that I have, this will not decided before Monday, because

21     it's already Friday afternoon at the moment, and, as rule, this is not

22     done over the weekends.

23             Therefore, a part of this issue is, in my opinion, already

24     superfluous.  But that's only my view.  I oppose a freezing order,

25     freezing order under inverted commas.  I believe that when you mentioned

Page 26151

 1     the example with the knife that it would be clear what you had in mind.

 2     However, Mr. Misetic and Mr. Kuzmanovic did not accept in the way that I

 3     expected them to do.  Therefore, I wish to emphasise that the proceedings

 4     against any person in the Republic of Croatia are instituted for the

 5     crime of concealing or destroying archival materials.  And this is a

 6     crime which is prosecuted ex officio whenever there are grounds to

 7     suspect that such persons may have committed those crimes so that there

 8     wouldn't be any doubts, this is no new or recent crime.  This is

 9     something that is very old.  At this moment we already have three

10     judgements against persons who were found to have possessed such

11     materials, and one of these judgements has become final.  I'm saying this

12     because the Court has given its opinion on the OTP's initiative, in terms

13     of whether this is to be considered a crime or not.

14             I especially wish to emphasise, considering that Mr. Kuzmanovic

15     says that the Croatian government - I'm not sure whether he said ordered

16     or carried out the searches that took place these days - that this is

17     completely incorrect, because the Croatian government could not have done

18     it, nor did it do that.  Likewise, when Mr. Misetic says that the

19     Croatian authorities are acting at the instigation or because they were

20     ordered to do so by the Chief Prosecutor of ICTY, I wish to say that, in

21     the sense that the State Prosecutor's Office is part of the authorities

22     in the Republic of Croatia, but it is part of the legal authorities, the

23     State Prosecutor's Office never and -- did anything at the order or at

24     the instigation and did not initiate any proceedings against any person.

25             All this criticism which was voiced in the last few days were

Page 26152

 1     officially refuted on the web site of the State Prosecutor's Office of

 2     the Republic of Croatia.  As for the question relating to further

 3     measures to be taken and how work connected to this case could continue,

 4     as the Deputy Chief Prosecutor I cannot say anything about that because

 5     this is beyond my jurisdiction, and the Ambassador of the Republic of

 6     Croatia will have something to say about that.

 7             Thank you.

 8             MR. PARO:  Your Honour, just briefly.  I have consulted my

 9     government, and while at -- while at this moment, they believed that

10     there are not -- no sufficient elements to be conclusive on the proposal,

11     and you have heard that they -- the position is that we are not in favour

12     of the freezing, we are concerned also, if I may just say, we are acting

13     under the sense of very high urgency because of the fact that the whole

14     matter of the documentation has been taken to the political fora and

15     consequently we are subject -- Croatia is subject to the political

16     sanctions so -- and our substantial interests are harmed.  We are not

17     very much inclined to any kind of lengthy procedures that would involve

18     us and the Court.

19             So we would like to move forward as quickly as possible, having

20     regard of the substantial harm to our interests.

21             As for the team that would appear before the Chamber on the 16th,

22     I have been instructed that the Prosecutor will not appear, unless

23     Prosecutor Brammertz would also appear.  And I have the list of the

24     people and as we speak, I believe that that has been passed onto the

25     Court through the official channel.

Page 26153

 1             Thank you.

 2             JUDGE ORIE:  Yes.  Do I understand you well.  I made a suggestion

 3     earlier, whether Croatia would be willing to explore a further

 4     verification of any privileged material being involved in the search and

 5     the seizure.  You answered that you would -- do not wish to engage in any

 6     lengthy proceedings.  Well, you may have understood from the way in which

 7     this Chamber acts that we are trying to move forward always as quickly as

 8     possible.  I mean, the whole matter was brought to our attention

 9     yesterday, and one day after that, we have a hearing on the matter.

10             Is this to say that -- even to explore that possibility, well,

11     let's to say, to start with to spend Monday and/or Tuesday on that, to

12     see whether any further verification could be achieved, would you not be

13     willing to make this step at this moment and see whether something can be

14     achieved, which, as I said before, is of quite some concern to the

15     Chamber.  That is, that both material which may contain matters which are

16     covered by orders of this Chamber, and material which could be privileged

17     material, that that is further inspected without any further control,

18     although the Tribunal interests seem to be directly involved.  We're

19     talking about the functioning of the Defence.

20             Is it your position that you would not even want to explore such

21     a possibility and, meanwhile, suspend further inspection of that

22     material, well, let's to say, to start with, let's forget about the

23     weekend because I take it that not much activity will be developed on the

24     weekend but that, for example, Monday and Tuesday, that further

25     conversations between the Registry because the Registry would be the

Page 26154

 1     authority which would work with you on such a solution, that you would

 2     have conversations with the Registry, the first days.  Is that your

 3     position, that --

 4             MR. PARO: [Overlapping speakers] ... If you consider to give me

 5     another opportunity to consult my government, I'm glad to do that.

 6             JUDGE ORIE:  Yes.  I'm therefore seeking a kind of -- I think you

 7     a call it a moratorium, in which the possibility of at least - I'm not

 8     talking about any other aspect of the case at this moment - but at least

 9     the review of whether there's any material which would be covered by

10     privilege which is not anymore in the hands of the Defence but is now in

11     the hands of the Croatian authorities.

12             One of the matters that would be included, for example, to delay

13     a request for having access to the seized computer, that would be one of

14     the things the Chamber would expect as part of that freeze.  And I'm, at

15     this moment for a first exploring exercise, I'm thinking in terms of --

16     and perhaps we could deal with the matter -- any further on Wednesday,

17     that at least Monday and Tuesday are used to see whether any solution, in

18     relation to this aspect of the matter could be reached.

19             If you would say you would like to consult, we'll give you an

20     opportunity to do so, of course, and we would then have a break.

21             Mr. Misetic.

22             MR. MISETIC:  May I also offer us another suggested alternative

23     which I think is how we would approach this.

24             Would the Republic of Croatia be willing to submit to the Trial

25     Chamber whatever evidence this it was that led to the search in the first

Page 26155

 1     place?  And the reason I say that is we have -- Mr. Tieger said he

 2     doesn't know what evidence was used for the search warrant, which I trust

 3     means that he doesn't know what was submitted to support the search

 4     warrant.  But I note that on 9th November the task force submitted its

 5     report with evidence, and on the 19th, ten days later -- but let me just

 6     say procedurally, this takes us back to the Trial Chamber's prior

 7     jurisprudence which is why I'm trying to stay consistent with how this

 8     problem was has been dealt with in the past.

 9             If there is something that they are looking for, then there

10     should be a submission through OTP to deliver it to the Chamber.  But

11     right now --

12             JUDGE ORIE:  That's your position, that's clear.  Now, another

13     matter is the first step to be taken there, would be, Mr. Misetic, that

14     you ask the Croatian government whether they would be willing to provide

15     it so that can you submit it to the Chamber.  That -- isn't it.  The

16     Chamber at this moment is at the early stages of analysing the problem

17     but --

18             MR. MISETIC:  Mr. President, if I may just -- here's the concern

19     [Overlapping speakers] ...

20             JUDGE ORIE:  [Overlapping speakers]... Yes, but --

21             MR. MISETIC:  I don't wish to be bound by Croatian interpretation

22     or how they view what [Overlapping speakers] ...

23             JUDGE ORIE:  I see that, Mr. Misetic, but you're introducing

24     now -- it's not the same kind of solution that the chamber is seeking for

25     that specific problem.  You're seeking the cooperation of the Republic of

Page 26156

 1     Croatia to get further information on matters, and it may be clear that

 2     the first questions by this Bench to the Republic of Croatia were what

 3     happened, what is it.  At the same time, this Chamber will not lightly

 4     manoeuvre itself in a position where it becomes a supervisor of Croatian

 5     courts because that's not its primary task.

 6             Therefore, at this moment, I take it that this matter has been

 7     sufficiently dealt with.

 8             Mr. Cule, you know what Mr. Misetic asks?  Yes.  You have the

 9     floor.

10             MR. CULE: [Interpretation] There is an order on the search of the

11     home and other premises, as well as of the vehicle of Marin Ivanovic.

12     And Marin Ivanovic had received that.  This is a judicial order

13     containing an explanation.  The explanation contains reasons that the

14     court had used in order to order the search.

15             It also contains all the bases for the court to reach such a

16     conclusion.

17             JUDGE ORIE:  First, do you -- have seen that order, Mr. Misetic?

18             MR. MISETIC:  No.  And, obviously, I'm not the party to be

19     moving, seeking documents from my own team.  So it's kind of absurd on

20     its face.

21             JUDGE ORIE:  No, no, I'm not talking about -- but you say, I

22     would like to know what the reasons were.  Now, we get an answer saying

23     the reasons are laid down in a document are you not aware of, and

24     apparently it is offered to you to start with, to have a look at that.

25             MR. MISETIC:  That wasn't the point I was trying to make

Page 26157

 1     Mr. President.

 2             The point I'm trying to make --

 3             JUDGE ORIE:  No.  You are -- now at this moment -- I'm also

 4     looking at the clock.  It has been clear to the parties that not every

 5     aspect could be dealt with today, that we were limited.  We -- it's ten

 6     minutes past 6.00 now, we have an offer by the Ambassador to -- to

 7     further consult and see whether there's any room for, at least until

 8     Wednesday, some further talks and to see whether without orders the

 9     matters could -- at least this aspect could be dealt with.

10             MR. MISETIC:  Yes, but Mr. President --

11             JUDGE ORIE:  And I would like to give a an opportunity at this

12     moment to the Ambassador to -- to make that consultation.

13             MR. MISETIC:  If I could just one sentence, Mr. President.

14             JUDGE ORIE:  One sentence.

15             MR. MISETIC:  I understand the Chamber does not want to be -- to

16     supervise Croatian courts, but I need to emphasise for the Chamber that

17     neither Mr. Kehoe nor I will be supervised by Croatian courts.

18             That's the point, thank you Mr. President.

19             Thank you.

20             JUDGE ORIE:  Thank you.

21             How much time would you need, approximately?

22             MR. PARO:  A second -- well, 15 minutes.

23             JUDGE ORIE:  15 minutes.  We need a break anyhow.  That means

24     that we will have a break of 20 minutes that's needed for tapes to be

25     changed.

Page 26158

 1             We resume at 25 minutes to 7.00.

 2                           --- Recess taken at 6.12 p.m.

 3                           --- On resuming at 6.48 p.m.

 4             JUDGE ORIE:  Could I invite you, Mr. Ambassador, or you,

 5     Mr. Cule, to inform us about the result of your further consultations.

 6             MR. PARO:  Your Honour, I did consult my government.  To this

 7     point, we believe that it is the sole responsibility of the Court to deal

 8     with the evidence seized.  There is no way that the Croatian government

 9     could exert any kind of influence or pressure on the Judges to withhold

10     the procedure, but, however, we would certainly not object if the Chamber

11     may wish to communicate directly to the Croatian judiciary in order to

12     achieve the freezing of the procedures.

13             Well, that's as much as can I say.

14             JUDGE ORIE:  Thank you.

15             Mr. Cule, or you, Mr. Ambassador, a very quick question, I take

16     it that the Croatian government can give orders to officers who are

17     investigating matters, police officers.  I mean, they do not act upon

18     orders.  Of course, they are bound by orders, but their investigative

19     activity is under the supervision and under the control of -- I take it,

20     the Ministry of Interior.  I'm not going into any further detail.  But

21     that, to that extent, to order them to remain inactive in a certain

22     field, that is within the competence of the government, would it not be?

23             MR. CULE: [Interpretation] Yes, the minister of the interior is

24     part of the government of the Republic of Croatia and does not fall under

25     the judiciary power.

Page 26159

 1             JUDGE ORIE:  Yes, thank you for that.

 2                           [Trial Chamber and legal officer confer]

 3             JUDGE ORIE:  Mr. Ambassador, you kindly offered to provide the

 4     correspondence between the Office of the Prosecutor in The Hague and the

 5     Croatian government on -- the Chamber would like to accept that offer,

 6     not primarily for the Chamber to be informed, but primarily for the

 7     parties who may have an interest in being acquainted with that material.

 8             Then the Chamber will -- yes, Mr. Mikulicic.  Oh.

 9                           [Defence counsel confer]

10             MR. MISETIC:  Mr. President, might we also inquire if the

11     Republic of Croatia would be willing to provide the Chamber and the

12     parties any minutes that may have been taken at this meeting -- meetings

13     between Mr. Brammertz and the officials that we -- on the 28th of

14     September, 2009?

15             JUDGE ORIE:  Mr. Ambassador, Mr. Cule, you heard the question.

16     Mr. Misetic would be interested to know whether the Croatian government

17     would provide, because he has a specific interest in it, any minutes of

18     meetings.  Can you answer that question?

19             MR. PARO:  I can only pass the question to the -- my government,

20     which I will do.

21             JUDGE ORIE:  Yes.

22             Any further matter, at this moment, to be raised by the parties?

23             Mr. Kuzmanovic.

24             MR. KUZMANOVIC:  Your Honour, as we know -- as you know our

25     client has issued specific instructions as to the presentation of

Page 26160

 1     evidence we have Monday and Tuesday.

 2             JUDGE ORIE:  Yes, I'll come to adjournment in a moment.  That,

 3     therefore, is a -- we could keep that for a few minutes after now.

 4             Because the Chamber will issue a temporary freezing order

 5     directed to the Republic of Croatia.

 6             The Chamber would like to issue an interim decision on the

 7     motions of the Gotovina Defence and the Markac Defence for temporary

 8     freezing orders directed towards the Republic of Croatia.

 9             Considering the urgency of the matter, the Chamber hereby orders,

10     with reasons to follow, the Republic of Croatia to stop, until further

11     notice, all inspections of the contents of all seized documents and other

12     objects, including computers, that Croatia has in its custody, which were

13     seized and removed from the possession of the Gotovina Defence, or from

14     present or former members of the Gotovina Defence, provisionally

15     identified as Messrs. Ivanovic, Ribicic, and Hucic or their relatives.

16             Specifically, the Chamber orders Croatia to seal these seized

17     item, insofar it has not already done so, and keep them in its possession

18     until further notice.

19             The Chamber will issue in due course a reasoned, written decision

20     explaining its competence to issue this order and why it has found it

21     appropriate in the present circumstances to do so.

22             The Chamber further orders the representatives of Croatia present

23     in the courtroom today - and that is you, Mr. Ambassador, you, Mr. Cule -

24     to convey without delay this message to the competent Croatian

25     authorities.  The Chamber emphasises that the interim decision has

Page 26161

 1     immediate effect and remains in force until further notice.

 2             And this concludes the Chamber's interim decision on the motions

 3     of the Gotovina Defence and the Markac Defence for temporary freezing

 4     orders directed towards the Republic of Croatia.

 5             Mr. Paro, Mr. Cule, of course, the order has been issued.

 6     Earlier, I suggested that if you would want to engage in any

 7     conversations with the Registry on the matter I earlier mentioned, of

 8     course, this order in itself does not prevent you, if you would wish to

 9     do so, to further contribute to finding solutions in the direction as

10     suggested by the Trial Chamber.

11             Is there any other matter to be raised at this moment?

12             Yes, Mr. Paro.

13             MR. PARO:  Well, Your Honour, is it possible to get the written

14     decision now?

15             JUDGE ORIE:  Yes.  I think that within the -- we'll find a copy

16     for you of what was said.  That could be part of the transcript, which

17     can be printed out, but then we would first is have to check whether the

18     transcript is perfect.  And there is a written text, although, that

19     should first be copied and some other instructions from me should be

20     removed from that, because that goes beyond what the decision itself is.

21             Mr. Misetic.

22             MR. MISETIC:  Yes, and just for the record, and so the Chamber

23     and Mr. Ambassador, keep in mind that we were in closed session for much

24     of today in terms of the transcript and how it will be used later.

25             JUDGE ORIE:  Yes.  Most of the submissions -- well, if we would

Page 26162

 1     provide you with the transcript, it would be that specific portion.  But

 2     I think it would be better to copy the content and then the words

 3     referring to you is taken out.  It just reads the representatives of the

 4     Republic of Croatia.

 5             We'll take care of that.  All that has been said in private

 6     session should remain confidential.  It is mainly on the basis of the

 7     confidentiality sought by the Republic of Croatia itself, so that, I

 8     would say, goes, without further explanation.

 9             Then I would like to thank you very much, Mr. Ambassador, and

10     you, Mr. Cule, for coming at such short notice, and to -- to inform the

11     Chamber about your views and to inform the Chamber about the events that

12     have happened.  It's highly appreciated that you have shown the

13     flexibility which perhaps was needed under the present circumstances,

14     but, again, it's very highly appreciated, and the Chamber would like to

15     thank you very much for that and, in general, for the cooperation of the

16     authorities of the Republic of Croatia.

17             We now then, Mr. Kuzmanovic, are at a point what to do on Monday.

18             MR. KUZMANOVIC:  Your Honour, we'll be ready to go on Monday.

19             JUDGE ORIE:  You'll be ready to go?

20             MR. KUZMANOVIC:  Based on the court's order, and I can inform the

21     Court and the parties that our witness on Monday will be Mr. Vurnek.  No

22     protective measures have been sought, and he will be ready to go on

23     Monday.

24             JUDGE ORIE:  Yes.

25             Mr. Misetic, what could we expect as far as the participation of

Page 26163

 1     the Gotovina in the proceedings on Monday as concerned?

 2             MR. MISETIC:  Obviously, I will talk to my client, but I expect

 3     that -- I expect that he should be here on Monday.

 4             JUDGE ORIE:  Yes.  Then we adjourn and will resume on Monday, the

 5     14th of December, at 9.00 in the morning, in this same courtroom, number

 6     III.

 7                            --- Whereupon the hearing adjourned at 7.03 p.m.,

 8                           to be reconvened on Monday, the 14th day of

 9                           December, 2009, at 9.00 a.m.