Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5578

1 Wednesday, 28 April 2004

2 [Motion Hearing]

3 [Open Session]

4 [The accused entered court]

5 --- Upon commencing at 10.05 a.m.

6 JUDGE PARKER: Good morning and welcome, Your Excellency, and your

7 secretary. We are grateful for your courtesy in attending. We have

8 received from the embassy a note of the views of your government, and we

9 would invite you, if you would wish to, to put any further observations

10 that you would like to make about the subject to us.

11 MR. KRNIC: [Interpretation] Your Honour, thank you for your kind

12 words. As you said, the Croatian government has made its position

13 available to the Court in writing. On my part, I have nothing new in

14 particular to add except to express my intention to reiterate, very

15 briefly, the position of our government, item by item.

16 In our view, to this day, the motion of the Defence has not been

17 granted because of procedural omissions. The Defence failed to present

18 appropriate power of attorney, as explained in paragraph 2 of the letter

19 addressed by our government to this Court.

20 In addition, the motion of the Defence was not specific enough, as

21 we explained in paragraph 3.

22 In addition, as we mentioned in paragraph 4, the documents

23 requested -- and I'm speaking about this documentation in general, because

24 we do not know which documents are meant specifically -- but this

25 documentation, in terms of their category, is still classified at various

Page 5579

1 levels of confidentiality and it has not been envisaged that it may be

2 disclosed to unauthorised persons or foreign nationals.

3 Also, as we emphasised in paragraphs 5 and 6, the Republic of

4 Croatia, in keeping with its policy of full cooperation with the

5 International Criminal Tribunal for the former Yugoslavia, is ready to

6 make available to the ICTY all the necessary documentation, provided it is

7 specified, and such documentation will be at the disposal of the

8 representatives of the Defence in the Croatian Ministry of Justice,

9 starting with the 3rd of May this year.

10 In our view, the Defence should have been prepared for the

11 possibility that the Croatian side would require, in keeping with Rules 54

12 and 54 bis (F)(ii) and 54 bis (G), the fulfillment of certain conditions

13 that are envisaged by these Rules.

14 Since some of this documentation has already been made available

15 to the OTP, the Croatian side does not object to these documents being

16 disclosed to the Defence, with the approval of the Trial Chamber.

17 That is all that the Croatian side is prepared or indeed able to

18 say at this moment regarding this case. Thank you.

19 JUDGE PARKER: Thank you, Your Excellency. We would understand

20 it, then, that full cooperation and assistance can be anticipated from the

21 3rd of May by your government and its respective officials and agencies.

22 MR. KRNIC: [Interpretation] That is absolutely correct, with the

23 proviso that we expect the Defence to specify these documents, after all,

24 either under your orders or on their own initiative, as much as they are

25 able to.

Page 5580

1 JUDGE PARKER: You will appreciate, Your Excellency, that the

2 nature of the documents generally has been identified in the Defence

3 request. I suspect that what will now need to occur is a process of a

4 consideration and an inspection by the Defence representatives of the

5 documents of that nature that is able to be provided by responsible

6 agencies of your government, and it will then be possible for the Defence

7 to identify the particular documents that they would want to bring before

8 this Tribunal.

9 I'm dealing, of course, only with documents that are not already

10 in the possession of the Prosecution. Those will be made available to the

11 Defence under the procedures of the Tribunal. But there are, it appears,

12 further documents still, the Defence believes, held by your government

13 which could be relevant to its defence, and it's those they would like to

14 inspect and to determine which of them have a relevance that they would

15 want to place them before us.

16 It is possible that there may be documents that are within the

17 description of those identified by the Defence which your government feels

18 ought not to be made available. If that situation should arise, as you

19 are aware, under the Rules, a Judge of this Tribunal may inspect those

20 documents and a decision can be made then whether they are of sufficient

21 importance in the case for their production to be sought by the Tribunal.

22 But that's merely looking ahead to that possibility.

23 What I might do is ask Defence counsel now whether they see any

24 particular difficulties with the process being pursued of arranging an

25 inspection of those documents, et cetera, as we have just been discussing.

Page 5581

1 Mr. Petrovic.

2 MR. PETROVIC: [Interpretation] Your Honour, first of all, I would

3 like to avail myself of this opportunity to thank you for having called

4 such a session so that we could discuss the matter. I also wish to thank

5 His Excellency for appearing before the Trial Chamber and for this

6 opportunity to discuss the matter before the International Tribunal.

7 As for your question, Your Honour, in principle, we would like to

8 say the following: It seems to us that specific, practical arrangements

9 are indispensable in order to be in a position to act in accordance with

10 your suggestions, Your Honours. Now, what is this about, actually?

11 In paragraph 6, or rather, paragraph 5 of the response of the

12 Government of Croatia, there is rather vague wording. That is to say that

13 Defence counsel -- a representative of the Defence will be allowed to

14 examine documents at the offices of the Republic of Croatia Ministry of

15 Justice. But what will be shown, and under what circumstances, is not

16 specified. So is it only archive numbers? Is it numbers of records or

17 lists that will be shown, or will the actual documents be shown, is not

18 specified here.

19 Your Honour, what I would like to ask you and the representative

20 of the Government of Croatia --

21 JUDGE PARKER: Mr. Petrovic, I see the words here that what is

22 proposed in paragraph 5 is that the Government of Croatia will first allow

23 the representative of the Defence to examine documents. So it's not

24 merely lists. What is proposed, as I understand the position of the

25 Croatian government, is that the documents will be made available for your

Page 5582

1 inspection, or inspection by your representative. I see that His

2 Excellency indicates his concurrence with that.

3 MR. PETROVIC: [Interpretation] Your Honour, if that is so, then we

4 can only say that, on the first possible opportunity, and that will be

5 after completing the Prosecution case in this trial, we will establish

6 contact with the gentlemen from the Croatian government and we will then

7 travel to Croatia, to Zagreb, and deal with the documents that we are

8 interested in.

9 With regard to all other procedures needed, we will take the

10 liberty of addressing you, Your Honour, and the representatives of the

11 Government of Croatia, for whatever may be needed.

12 In addition to that, there is a problem related to paragraph 6 of

13 this response of the Government of Croatia. Regrettably, we are not in a

14 position to know what had been handed over to the Office of the Prosecutor

15 of this Tribunal, and therefore, we simply cannot state our views in this

16 respect. If we knew what was handed over to them, then we could present

17 our own position. The Defence can say that certain documents sporadically

18 selected were disclosed to the Defence, but whether that includes

19 everything is something that we cannot say today before you. So we would

20 appreciate a clarification and explanation from the Prosecution, as well

21 as from the distinguished representative of the Republic of Croatia.

22 Thank you.

23 JUDGE PARKER: Thank you, Mr. Petrovic.

24 I wonder -- Ms. Somers or Mr. Re?

25 MS. SOMERS: It is I, sir.

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Page 5584

1 JUDGE PARKER: Ms. Somers, are you able to indicate the situation

2 with respect to that documentation which the Prosecution has received from

3 the Government of Croatia?

4 MS. SOMERS: We're not sure which particular documents His

5 Excellency is referring to as having been provided and we would have to

6 know which of the categories. But there has been a search done and we can

7 indicate that as to some of the MUP related documents, those in general

8 have been -- if they are Rule 68, in the absence of reciprocal discovery

9 invocation, are reviewed and, if found, provided. But the Prosecution, as

10 Your Honours know, receives many documents, many of which are not

11 necessarily subject to disclosure under the Rules unless they fall within

12 the appropriate category. In this instance, it would be Rule 68. So we

13 would have to have an understanding from the Republic of Croatia if we're

14 talking about the same documents, and if those are indeed the particular

15 documents to which I have referred. But searches have indicated that the

16 bulk of what is referred to here is not something, unless there's a flaw

17 in the description, we would have to know what it is Croatia is referring

18 to and we'll be happy to try to get that explained to us.

19 JUDGE PARKER: Thank you very much, Ms. Somers. I think it is

20 obvious from what you have indicated that we would invite you or your

21 representative to have discussions with the ambassador, or no doubt his

22 representative, to clarify the documents which the Government of Croatia

23 believes have already been made available to you. And if you could then

24 ensure that those documents are made available to the Defence, and if that

25 can be done in the next, I would think, three weeks, we would be grateful.

Page 5585

1 MS. SOMERS: Thank you, Your Honour. I just am clarifying that

2 documents which fall under Rule 68 again in the absence of reciprocal

3 discovery invocation.

4 JUDGE PARKER: Yes. If there are further documents you have which

5 you are not -- which you are of the view do not come within Rule 68, if

6 that fact could be indicated to the Defence and the Chamber in that same

7 time frame, so that the Defence knows that there are documents which

8 Croatia has provided to you which you at the moment feel should not be

9 provided to them, and the Chamber's processes can then be followed if

10 there is dispute about that issue. But at least then the Government of

11 Croatia will know that its documents that it has provided to you, that it

12 believes are relevant to the request of the Defence, have been provided to

13 the Defence or the issue of whether they should be, within the Tribunal's

14 processes, has identified. And that will then leave the Government of

15 Croatia only dealing with the balance of any documents which they

16 presently hold, which the government believes come within the Defence's

17 request.

18 And as you heard, Your Excellency, over the next probably three

19 weeks, the Prosecution will be concluding its case. At the end of that

20 time, rather than the 3rd of May, I think you can expect that there will

21 be a visit to Zagreb by representatives of the Defence to follow up the

22 inspection which has been proposed by your government. But no doubt in

23 that three weeks, there will be discussions with your secretary by

24 representatives of the Defence making early arrangements for that visit to

25 Zagreb and the inspection, because I'm sure the Defence will want to get

Page 5586

1 on to that the moment we pause in the hearings here at the end of the

2 Prosecution case.

3 Now, that should all be convenient and fit in with what you

4 proposed, should it not?

5 MR. KRNIC: [Interpretation] Your Honour, it is precisely the way

6 you had put it. I would just like to clarify the situation in one

7 particular detail.

8 Paragraph 6 was guided by an attempt to economise, as much as

9 possible, so to speak. We simply wanted to speed up the process of

10 providing documents. That was the intention of the Croatian government in

11 this cooperation between the Defence and the Prosecution. What remains is

12 the promise of the Croatian government to provide full insight into

13 available documentation, but this is a process. The Defence will look at

14 archives, at documents, and see whether they are finding the right

15 documents or not, and they will state whether they can see where the

16 documents that are relevant to them are. So for them, there will be no

17 problem in this respect.

18 JUDGE PARKER: Thank you. From the point of view of the Tribunal

19 and this Chamber, we should not have to impose upon the government to

20 provide documents twice. So if you have already provided them to the

21 Prosecution, once the Prosecution knows which ones they are, the processes

22 of the Tribunal can deal with all of those. So there should be no ongoing

23 concern for your government with the documents that come under paragraph

24 6. They have already been provided. And the administrative arrangements

25 that we have in place we hope will enable the Defence to gain access with

Page 5587

1 reasonable expedition to any further documents that your government has

2 that come within the description in the Defence request.

3 That being so, I think we can draw this procedural hearing to a

4 conclusion, and we look forward to those matters being resolved, with the

5 cooperation by all parties. And should there be difficulties, of course,

6 the matter can be brought back to us at the appropriate time.

7 May we thank you once again, Your Excellency and your secretary,

8 for your attendance this morning, and we look forward to the ongoing

9 assistance and cooperation of the government in this matter.

10 We will now adjourn. We will resume just shortly, just on 11.00.

11 There is another matter to which attention must be given before we resume.

12 Thank you.

13 --- Whereupon the Motion Hearing

14 adjourned at 10.28 a.m. to be followed

15 by resumption of the hearing.