1 Thursday, 7 September 2000
2 [Open session]
3 [Ex Parte - Prosecution]
4 --- Upon commencing at 4.00 p.m.
5 JUDGE MAY: Mr. Nice, this is the hearing of your application.
6 MR. NICE: Yes.
7 JUDGE MAY: Of the 2nd of August for an additional order in
8 relation to various documents which are sought from the government and to
9 explain the current state of the outstanding orders.
10 Mr. Miljenic, I understand you are here from the embassy
11 representing the government.
12 MR. MILJENIC: Well, not quite.
13 JUDGE MAY: Tell us about your position.
14 MR. MILJENIC: First of all, I would like to speak in Croatian with
15 your permission. [Interpretation] I was with the embassy earlier. Now I
16 am representing the Republic of Croatia because meanwhile, I have become
17 the head of the Office for Cooperation with the International Court of
18 Justice and the International Criminal Tribunal. With me is Mrs. Mira
19 Martinac from the embassy ministry council, counsellor at the embassy in
20 The Hague.
21 JUDGE MAY: Very well, we have the letter then of your -- from
22 your predecessor dated the 24th of August, Dr. Granic.
23 MR. MILJENIC: [Interpretation] I have to correct you again. He is
24 not my predecessor, he is my boss. He is the chairman of the Council for
25 Cooperation with the International Court of Justice and the International
1 Criminal Tribunal. And the office which is an operative body and which I
2 head is subordinate to that council. The council is made of ministers,
3 members of the cabinet, and the council is headed, chaired by deputy prime
5 JUDGE MAY: We'll hear Mr. Nice then.
6 Mr. Nice, I will begin by saying this, that an issue is raised as
7 to whether this is, in fact, a new application or not and requires the
8 procedure under Rule 54 bis. We, however, have considered that and we've
9 come to the conclusion that the original order of the 28th of January is
10 in such broad terms that it covers this further application which relates
11 to documents which would have been discoverable in any event. So we
12 propose to treat it as an application of enforcement of that order.
13 MR. NICE: Thank you. Before I move on, can I just draw to
14 everyone's attention we are in open session. For the Prosecution, we
15 have, of course, no objections to that. Sometimes these hearings for
16 cause are held in closed sessions. I don't know if there are going to be
17 any representations made on behalf of Croatia about that.
18 In the absence of any such representations, the matter was, I
19 hope, clearly and adequately pleaded in our documents, but for summary
20 purposes can I remind you that in the application itself, as well as
21 seeking enforcement of earlier orders, we list at the annex starting on
22 the seventh page of the application, but then starting the numbers afresh,
23 a list of the documents that we seek by 70 paragraphs. I don't think it's
24 going to be a helpful exercise to go through those one by one, and the
25 historical relationship of those paragraphs to earlier paragraphs is set
1 out in the confidential memorandum at page 7 and, thereafter, where it
2 identifies the way to which these latest itemised requests either reflect
3 or narrow down or particularise earlier requests, the subject of existing
5 I must bring you up to date in respect of one matter. The Chamber
6 will know from another useful part of the confidential memorandum, namely
7 attachment number 3, and the second page of that, item 16, that
8 immediately before a meeting on the 24th of May of this year, six Ahmici
9 documents were provided including reports from Miroslav Tudjman to Franjo
11 Since then, in August, some further documents have been provided.
12 I think a number of some 15 to 18 documents thought to be relevant to
13 Ahmici issues. They have yet to be processed, and I can't, I'm afraid,
14 provide you with detail of what they constitute at the moment. But in any
15 event, it's not suggested that that is an exhaustive production that meets
16 all the outstanding orders of this Court.
17 In any event, of course, this Court also ordered that there should
18 be a response, paragraph by paragraph, at an earlier stage in respect of
19 outstanding orders, and we would say that the time has come now for either
20 production or a definitive and final answer by the State as to whether it
21 doesn't have documents, whether it ever had them, what has become of them,
22 and so on.
23 The Chamber will have in mind the nature of the difficulty we face
24 because it was highlighted by two of those six documents that are referred
25 to as having been handed over in May. Those two documents, or two of
1 those documents were produced in the course of this trial; one relates to
2 one defendant and appears to be exculpatory; the other relates to the
3 other defendant and appears to be inculpatory.
4 His Honour Judge Robinson raised with me in the course of the
5 hearings questions about the provenance of those documents, and I
6 explained to the Chamber then, as we have explained since in these
7 documents, that it is of course answers to those questions that may be
8 critical to a proper evaluation of documents, even if we are able to
9 provide those documents by bare production to the Chamber in due course in
10 rebuttal. And it's our inability to answer such sensible but, if I may
11 so, entirely inevitable questions that His Honour Judge Robinson asked me
12 that leads to the extreme urgency of the applications that we've made and
13 that is now being dealt with.
14 In short, if we do not have all the documents or, alternatively,
15 satisfactory answers as to the absence of existence of these documents, we
16 simply won't be in a position to provide the best evidence, even of the
17 documents that may slowly be coming our way, in time for final argument in
18 this case.
19 It is also quite clear, not only just from newspaper articles
20 which we have provided you for interest, but from other obvious lines of
21 argument, that the documents set out in these categories, many or most of
22 them, do exist. For example, very recently, yesterday, the man Sliskovic
23 was arrested in Croatia, reflecting the inevitable existence of a file on
24 him. Inevitably, we would say, related to the matters here at issue; one
25 of the documents similar in category to other such documents that we have
1 been seeking to obtain.
2 So we would invite you to say, in short, that the 70 paragraphs
3 listed in the application, being particularisations and sometimes
4 narrowing down of earlier categories of documents that the Chamber has
5 ordered should be produced, should now be the subject of definitive
6 response by the State of Croatia by production or explanation in a
7 satisfactory way, and I'm afraid we must ask for the very shortest time.
8 There's been a history of orders and non-response to orders. It is
9 reasonable to assume that those orders were reflected in Croatia by
10 activity rather than by inactivity, and therefore it must be the case that
11 they're in a position to deal with these matters now swiftly.
12 Before I conclude what I would like to say at this stage, it would
13 be wholly inappropriate of me not to acknowledge that there has, of
14 course, been a very considerable change in attitude by Croatia. There has
15 been very considerable provision of documents in various other categories
16 for all of which we are, of course, grateful and in respect of which we
17 are taking steps so that that material may be before the Court wherever it
18 is likely to be useful.
19 But in respect of the Ahmici documents, we regret to have to say
20 there has been a failure to be responsive, and these documents, as listed,
21 are outstanding and will assist the Chamber.
22 JUDGE MAY: You've seen the response to which I've referred for
23 Dr. Granic?
24 MR. NICE: Let me check if I have. I'm not sure that I have seen
25 it specifically.
1 JUDGE MAY: You better see it because it came apparently in
2 translation today.
3 MR. NICE: All right. We've been checking along the way whether
4 things have been produced pursuant to orders.
5 JUDGE MAY: You ought to see what they say.
6 MR. NICE: Certainly.
7 JUDGE MAY: There's a copy here.
8 MR. NICE: May I sit to read this?
9 JUDGE MAY: Yes, certainly.
10 MR. MILJENIC: [Interpretation] Excuse me, Your Honour. While
11 we're waiting for the Prosecution to read it, I should like to ask you to
12 go into a closed session since there may be some information mentioned
13 here having to do with the current developments in Croatia.
14 JUDGE MAY: Yes, we'll go into closed session.
15 MR. MILJENIC: [Interpretation] Thank you very much.
16 [Closed session]
13 pages 24365-24382 redacted – closed session
24 -- Whereupon the Ex Parte Hearing
25 adjourned at 5.05 p.m.