Tribunal Criminal Tribunal for the Former Yugoslavia

Page 55

1 Friday, 9 February 2007

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.12 p.m.

6 JUDGE MOLOTO: Good afternoon to everybody. May the Registrar

7 please call the case.

8 THE REGISTRAR: Good afternoon, Your Honours. This is case number

9 IT-06-90-PT, the Prosecutor versus Ante Gotovina et al.

10 JUDGE MOLOTO: Thank you very much. Welcome to everybody and may

11 we please get the appearances the parties, please. Prosecutor,

12 Mr. Tieger.

13 MR. TIEGER: Good afternoon, Mr. President and Your Honours. Alan

14 Tieger and Laurie Sartorio, with case manager Donnica Henry Frijlink for

15 the Prosecution.

16 JUDGE MOLOTO: Thank you very much. For the Defence of General

17 Gotovina.

18 MR. KEHOE: Good afternoon, Your Honours. Greg Kehoe and

19 Luka Misetic for General Gotovina.

20 JUDGE MOLOTO: For the Defence of Mr. Cermak.

21 MR. PRODANOVIC: [Interpretation] Good afternoon, Your Honours.

22 General Cermak is represented by myself, Cedo Prodanovic, and my

23 colleague, Ms. Jadranka Slokovic.

24 JUDGE MOLOTO: Thank you, Mr. Prodanovic. And for Mr. Markac.

25 MR. SEPAROVIC: [Interpretation] Your Honours, the Defence for

Page 56

1 General Markac is myself, Miroslav Separovic around Mr. Goran Mikulicic.

2 JUDGE MOLOTO: Thank you very much. Before we proceed, can we

3 just make sure that General Gotovina and General Markac and General Cermak

4 can hear us in a language they understand. General Gotovina.

5 THE ACCUSED GOTOVINA: [Interpretation] Thank you, Your Honour.

6 Yes.

7 JUDGE MOLOTO: Thank you very much. General Cermak.

8 THE ACCUSED CERMAK: [Interpretation] Thank you. Everything is

9 fine, Your Honour.

10 JUDGE MOLOTO: Thank you very much. And General Markac.

11 THE ACCUSED MARKAC: [Interpretation] Thank you, Your Honour.

12 Everything is fine.

13 JUDGE MOLOTO: Just by way of a preliminary remark to explain the

14 apparent awkward sitting of the Bench, the only reason that I'm sitting in

15 the centre here is because I'm Pre-Trial Judge in this matter, most

16 probably going to sit as the Trial Judge. It is not quite certain that

17 either Judge Orie or Judge Van Den Wyngaert would sit, and that's the only

18 reason that I'm sitting in the centre.

19 The last Status Conference in the present case was held on the 5th

20 of December, 2006; and pursuant to Rule 65 bis of the Rules of Procedure

21 and Evidence, a Status Conference shall be convened within 120 days of the

22 last, in order to organise exchanges between the parties, to ensure the

23 expeditious preparation for trial, and to allow the accused to raise

24 issues in the case.

25 Given today's major agenda items, the alleged conflicts of

Page 57

1 interests between the various Defence teams and Mr. Cermak's compliance

2 with the conditions of his provisional release, the full Bench is present.

3 And earlier this afternoon, a 65 ter meeting was held with the parties and

4 the senior legal officer of the Trial Chamber I, in preparation for the

5 present hearing.

6 May we just deal, first of all, with the situation on the health

7 of the accused.

8 General Gotovina, do you have anything to say about your own

9 health and conditions of stay in the UNDU?

10 THE ACCUSED GOTOVINA: [Interpretation] Your Honour, thank you for

11 asking me. Everything is fine.

12 JUDGE MOLOTO: Thank you very much, General Gotovina.

13 General Cermak.

14 THE INTERPRETER: Microphone, please. The interpreters cannot

15 hear the speaker.

16 JUDGE MOLOTO: Microphone, Mr. Cermak. The interpreters could not

17 hear you.

18 THE ACCUSED CERMAK: [Interpretation] Your Honours, my health is

19 just fine. Thank you.

20 JUDGE MOLOTO: Thank you very much. General Markac.

21 THE ACCUSED MARKAC: [Interpretation] Your Honours, you know that

22 my health is not good, but the team of doctors is doing their best to

23 reduce my pain or improve my health if that is at all possible. Thank

24 you.

25 JUDGE MOLOTO: Thank you very much, General Markac.

Page 58

1 The next item I would like to deal with is the rule 93 bis (D)

2 situation. In its response to the Trial Chamber's request pursuant to

3 Rule 73 bis (D) filed on the 22nd of January this year, the Prosecution

4 stated it was not fully able to consider any possible overlap between the

5 counts, because the Defence has filed a motion seeking to strike certain

6 counts from the joinder indictment. So any discussion of cumulative

7 charging would be premature at this stage until a decision has been

8 issued.

9 Am I capturing the situation of the Prosecution correctly,

10 Mr. Tieger, on that point?

11 MR. TIEGER: On that particular point, Your Honour, I believe so.

12 I'm not sure if the Chamber is directing its attention to the entirety of

13 the motion or seek some clarification on that single point.

14 JUDGE MOLOTO: No, not at all. I just wanted to be sure we have

15 captured you correctly. And you said that in order to do so, the

16 Prosecution would reduce its case by reducing the number of municipalities

17 in the indictment by six and reduce the temporal scope by two months. You

18 also said it was premature to indicate what impact such decision would

19 have on the number of witnesses it may call since the 65 ter witness list

20 is not here completed or submitted.

21 At this point the Chamber is inclined then to order the

22 Prosecution to reduce the indictment as they indicated, and the Trial

23 Chamber reserves the right to review the indictment further and order for

24 more reductions.

25 MR. TIEGER: Yes. The anticipated order was mentioned at the 65

Page 59

1 ter conference, and I understand the nature of the order.

2 JUDGE MOLOTO: Thank you very much. So the Prosecution is so

3 ordered to reduce the indictment accordingly.

4 The next item is the question of agreed facts. What progress has

5 been made in that direction? May we start with you, Mr. Tieger.

6 MR. TIEGER: Your Honour, there was extensive discussion with

7 respect to this particular aspect of trial preparation at the 65 ter. I

8 can only summarise it briefly, I trust, by indicating that although there

9 have been continuing discussions, we -- I think there was a consensus

10 between the Prosecution and the Defence that in light of the necessary

11 steps to achieve meaningful progress on meaningful agreed facts, there's

12 going to be considerable difficulty in light of the competing demands on

13 both the Prosecution and the Defence between at least now and the

14 submission of the Defence pre-trial brief and which leaves precious little

15 time between than point and trial, much of which I anticipate will be

16 spent at least by the Prosecution in making necessary arrangements and

17 preparation for the commencement of trial.

18 So we have not abandoned that effort. Indeed, Defence counsel and

19 I met into the early evening hours yesterday to pursue that, but the

20 reality is that that effort made clear to us, as it has before, the nature

21 of the process and the steps it requires, including among three Defence

22 teams considerable logistical coordination and contact with their

23 individual clients. And although we will not consciously abandon it,

24 we're not very optimistic.

25 JUDGE MOLOTO: Did I understand you to be saying that the Defence

Page 60

1 counsel has logistical problems in contacting their clients?

2 MR. TIEGER: No. No, Your Honour. Well, I mean -- what I'm

3 suggesting is that for every step forward, that cannot proceed, as I

4 understand it, from their side - and they're welcome to explain it further

5 themselves - without exchange between counsel and then subsequent contact

6 with the individual clients.

7 I am suggesting that that is a logistical aspect to the nature of

8 agreed facts that plays a significant role in any effort to move forward,

9 but I didn't mean suggest that there are any unusual logistical

10 impediments. Maybe there are, but they'd have to tell you that.

11 JUDGE MOLOTO: Thank you, Mr. Tieger.

12 Mr. Kehoe.

13 MR. KEHOE: Yes, Your Honour. I was the Defence counsel that has

14 been interfacing with Mr. Tieger for the most part on the agreed facts,

15 but the reality is, Judge, with the accelerated trial schedule of May 7th,

16 a meaningful discussion on agreed facts -- there is simply no time for any

17 meaningful discussion on agreed facts.

18 JUDGE MOLOTO: Mr. Kehoe, let's just get things correct here.

19 When you say accelerated schedule, what was it before?

20 MR. KEHOE: Well, I believe that there was notification from the

21 Registry that trial was to be in January of 2008.

22 JUDGE MOLOTO: That's water under the bridge, Mr. Kehoe. We've

23 discussed that.

24 MR. KEHOE: I understand, Judge, but I'm just discussing where we

25 are vis-a-vis agreed facts with the reduced time schedule that we have to

Page 61

1 prepare this case and to deal with the Prosecution.

2 JUDGE MOLOTO: There has never been a scheduling for January 2008,

3 so there cannot be talk of reduced scheduling.

4 MR. KEHOE: With all due respect, Judge, I do believe a

5 notification came out of the Registry that the Registry was looking at

6 this trial for January of 2008. With all due respect, Judge, I do believe

7 that that was communicated publicly.

8 That being said --

9 JUDGE MOLOTO: Could we have -- are you able to give us a copy of

10 this.

11 MR. KEHOE: I don't have it personally, but that's my

12 understanding from co-counsel.

13 MR. MISETIC: Your Honour, I -- this is again a public statement

14 that was made by the spokesman for the Prosecutor's office. As I

15 understand it, from A, my counsel and for Mr. Cermak; and B, from the

16 Prosecution, subsequent to the last time we were at a Status Hearing, that

17 information came as part of a schedule that the Registry had put together

18 on what the approximate trial times were.

19 So whether that is from this -- I think we were advised in the 65

20 ter conference in December that there is a committee of the Judges that

21 makes scheduling plans for which case are going to go to trial when, and

22 that that committee decided that we were prepared to go to trial and that,

23 therefore, we should now be ready to go to trial in May of 2007.

24 It was our assumption after that fact, that it was that same

25 committee through the Registry that had approximated the trial dates be in

Page 62

1 early 2008, but we are talking about information that has been given to

2 Defence counsel for Cermak and, apparently, the spokesman for the

3 Prosecutor's office said that was the trial date. Thank you, Your Honour.

4 JUDGE MOLOTO: Yes. My only comment here is that, Mr. Kehoe, you

5 were talking about a public statement from Registry. Mr. Misetic is

6 talking about a statement from the Prosecution's office. And as for the

7 question of the statement from Prosecution's office, we discussed this

8 extensively at the last Status Conference. The Prosecution did state its

9 position clear that they never made such a statement. I'm not quite sure

10 where we are at this stage.

11 MR. MISETIC: [Interpretation] Your Honour, I believe that's

12 incorrect. I don't think they said that the Prosecutor didn't make -- the

13 Prosecutor's spokesman didn't make that statement; and if that's going to

14 be in dispute, we can produce the statements that were made.

15 I think our position prior to the last Status Conference, we also

16 have to make plans and rely reasonably the organs of the Tribunal when

17 they provide us information about when should be prepared to go to trial.

18 We relied in good faith on those organs of the Tribunal.

19 If there's been a change, I think that's fine. But I think what

20 Mr. Kehoe said in his earlier remarks, accelerated trial schedule from the

21 perspective of the Defence, it has been accelerated given the information

22 that we had prior to that.

23 JUDGE MOLOTO: Maybe I misspoke, Mr. Tieger. Can you tell us what

24 you said to us the last time?

25 MR. TIEGER: Here's my understanding of the circumstances just

Page 63

1 described, and I haven't revisited that for some time. I'll be happy to

2 double-check to make sure what I say to the Court now is accurate, but my

3 understanding is the following: That at some point there was published,

4 in some newspaper or in some forum, a comment by the OTP spokesperson.

5 That comment was a reference to information received from the Registry and

6 an explicit reference information received from the Registry.

7 So what I -- and, of course, I believe I was asked last time

8 whether the -- the OTP had suggested in any way that it was seeking or

9 determining a trial date, and I indicated that, of course, that wasn't the

10 case. I wasn't personally aware of that particular article. I think it

11 was raised, in fact, by Mr. Misetic at that time, similar to the

12 indications he gave the Court today.

13 I checked on that then to see whether it had been some independent

14 assertion by the OTP spokesperson or speculation, and I learned that it

15 was a reference to information provided from the Registry, and that's

16 about all I can tell the Court and would be happy to double-check it if

17 that's useful to the Court.

18 JUDGE MOLOTO: Thank you very much. I guess the bottom line is

19 that, in fact, there hasn't been any official scheduling of this trial

20 prior to the current scheduling for the 7th of May.

21 MR. KEHOE: I understand, Your Honour, but --

22 JUDGE MOLOTO: Thank you.

23 MR. KEHOE: Can we go back to the 73 bis.

24 MR. KEHOE: Absolutely, Judge, but the fact of the reality is that

25 the first notification that we had of a trial in May of 2007 was Your

Page 64

1 Honour's comments during the last pre-trial hearing. Now, with what we

2 perceive to be an accelerated schedule and the things that have to be done

3 leading up to that, the Rule 72 motions, overall preparing for trial,

4 preparing, going through matters with our client, it has made it extremely

5 difficult to have a meaningful discussion about agreed facts.

6 For instance, Mr. Tieger and I were talking about one particular

7 witness who has a hundred-odd pages of an ECMM report, in addition to

8 three or four statements. There are any number of issues in there that

9 are problematic, could be stipulated to. But taking the time to go

10 through all of that information, interfacing with Mr. Tieger, then talking

11 to General Gotovina, and talking to the Defence counsel for just one

12 witness is a time-consuming endeavour. And, realistically, being able to

13 do all that, yet at the same time prepare for an impending trial, which is

14 now just several months away, is just simply an impossible task.

15 That's not to say that Mr. Tieger and I and the rest of the

16 Defence counsel won't continue to try to do that. But as far as, as we

17 discussed in the last pre-trial with you, Judge, as far as having a

18 meaningful discussion where we go through agreed facts from A to Z in a

19 case of this magnitude, it's impossible on this current time frame.

20 JUDGE MOLOTO: I guess the Chamber must understand you to be

21 saying that there would be no agreed facts forthcoming, because it is

22 impossible giving the scheduling.

23 MR. KEHOE: I'm not saying it's -- there will be no agreed facts,

24 Judge. We will do our best to agree on as many facts as we can, but there

25 are logistical difficulties not in seeing our clients but in, of course,

Page 65

1 talking with each other, talking with Defence counsel, talking with

2 clients, them talking with their clients, to arrive at a general

3 consensus.

4 It's not something that can't happen, Judge. I don't want to tell

5 you that. I'm just telling you it's a time-consuming process; and given

6 where we are in February the 9th of 2007 with a trial in May of 2007 with

7 all of the facts and circumstances to be presented in this case, it's

8 going to be impossible physically to do all that and yet at the same time

9 prepare for trial.

10 I'm not saying that there will be no facts stipulated to, Judge.

11 I am not saying that. But to do a job which we would normally do to take

12 from A to Z, I just have to be perfectly honest with you, Judge, it's

13 physically impossible given the time constraints that we now have to do

14 that.

15 JUDGE MOLOTO: At least the record can show that the parties are

16 not only becoming aware of the need for these agreed facts to be submitted

17 today. In the Status Conference in December, this was raised. The

18 parties were aware of this even before the Status Conference of the 5th of

19 December last year that agreed facts are something to be worked on. It's

20 not as if this is something that's new and falling all of a sudden on the

21 parties.

22 MR. KEHOE: And if I can address -- I'm sorry, Judge.

23 JUDGE MOLOTO: No, no. I'm not asking you to address it. I'm

24 just saying, at least, we can put it on the record that that is so. That

25 is fact.

Page 66

1 MR. KEHOE: That is a fact, Judge, but I think we also have to

2 note that we didn't have the full breadth of all of the evidence that was

3 coming to us from the Prosecution. I mean, we have had a continuing

4 disclosure. I mean, it's been a daunting task from the Prosecution. This

5 is, please, no criticism from anybody from the Office of the Prosecutor in

6 any way, shape, or form, but the disclosure has ban, in fact, a daunting

7 task for them.

8 So getting involved in stipulated facts before complete

9 disclosures are made is likewise a difficult task, because if, in fact, we

10 attempt to agree to something in large issue that subsequent facts that

11 are revealed to us cause us to change our mind, then we're back at square

12 one. And we, Mr. Misetic and I and all the respective counsel, haven't

13 done the work for our clients the way that we're supposed to. So I

14 understand it's been something that's been on the table, Judge, but it's

15 something that hasn't been -- we have not been able to get into

16 meaningfully until we have everything that needs to be addressed.

17 JUDGE MOLOTO: Okay. Just maybe to try and round out the problem,

18 the point, is there any indication that can be given as to when these

19 agreed facts can be expected, from your point of view?

20 MR. KEHOE: From my point of view no, Judge. I gladly turn to my

21 colleague, Mr. Tieger, and see if he has alternate schedule in mind, but I

22 simply don't know at this point.

23 JUDGE MOLOTO: Okay. Mr. Prodanovic, do you have any comments to

24 make on this?

25 MR. PRODANOVIC: [Interpretation] Your Honour, I would just like to

Page 67

1 remind you that in the Cermak, Markac case, before the joinder, we did

2 start stipulating to agreed facts, and we exchanged our original views.

3 However, since the joinder took place and since we did not have a single

4 indictment, we stopped the procedure. So in a way we have already dealt

5 with this. I think it would be best now if the Prosecutor were to come

6 out with his position on this. What would the possible agreed facts be at

7 this point in time. Of course, we will respond in keeping with our own

8 positions.

9 JUDGE MOLOTO: Thank you, Mr. Prodanovic.

10 Mr. Separovic.

11 MR. SEPAROVIC: [Interpretation] Your Honour, our position is

12 exactly the same to the position of the Defence teams of General Cermak

13 and General Gotovina. I will not repeat the arguments preferred, but only

14 say that, for instance, 41 witness statements have not been translated

15 into Croatian at all. More than 300 documents remain untranslated at this

16 point. How can we discuss the facts that could possibly be agreed, if we

17 do not have all the material? We need to be precise and accurate in

18 discussing these matters.

19 So I subscribe to the positions of my colleagues, and I state at

20 the same time that we will do our utmost to make progress in this

21 direction. Thank you.

22 JUDGE MOLOTO: Mr. Separovic, thank you for what you ever said.

23 I'm a bit startled by the figures that you are throwing around; 41

24 statements and 300 documents. We are coming to those items of disclosure

25 and we'll deal with them when we get there, but I thought the picture was

Page 68

1 slightly different from what you are painting. But be that as it may,

2 that's fine.

3 The Chamber, well, then still encourages the parties to continue

4 to engage on the question of agreed facts and to try and submit the agreed

5 facts as soon as possible before the start of the trial. I guess that's

6 all the Chamber can say at this stage, just to emphasise the fact that the

7 delay in meeting -- in agreeing on the agreed facts is not anticipated at

8 this stage to shift the start date of the trial.

9 Okay. Preliminary motions under Rule 72 would be the next item.

10 Defendant General Ante Gotovina's preliminary motion to dismiss the

11 proposed joinder of the indictment pursuant to Rule 72, filed on 28th of

12 April 2006, was supplemented on the 18th of January this year by his

13 preliminary motion challenging jurisdiction and his motion challenging

14 defects in the form of joinder indictment; and also by General Mladen and

15 General Markac's joint preliminary motion regarding jurisdiction.

16 The Prosecution's responses to all above-three motions was filed

17 on the 1st of February this year, and the Trial Chamber just wanted to

18 inform the parties that a decision would be rendered shortly.

19 MR. KEHOE: Your Honour, may I be heard on that issue?

20 JUDGE MOLOTO: Yes, you may be heard, sir.

21 MR. KEHOE: This is an issue that, obviously, we think is

22 substantively crucial prior to even moving into the further preparation of

23 this trial, and I think that an examination of our most recent Rule 72

24 motions and the grounds for that as well as the challenges to the

25 jurisdiction -- or to the form of the indictment are compelling. The

Page 69

1 jurisdictional grounds are quite compelling, and we had asked in our

2 brief, and once again I brought it up with Mr. Pittman at the 65 ter

3 conference this morning, if we can ask for oral argument. Mr. Pittman

4 asked us to agree on a date for that oral argument, and I believe with the

5 OTP, with Mr. Tieger, I believe my fellow Defence counsel said that

6 possibly on the week of February 22nd or the date of February 22nd or

7 23rd, I believe everybody could be present before the Court to argue those

8 motions.

9 I ask the Court for that time because from General Gotovina's

10 perspective and the rest of the Defence, argument on those particular

11 issues are crucial for a proper determination of this case.

12 JUDGE MOLOTO: It is also correct that Defence replies were

13 received yesterday, the 8th of February, on this issue.

14 MR. KEHOE: That's correct, Judge. And there was a supplement

15 that we recently filed because there was some mistake on our part with

16 regard to the word count, and I explained -- brought to my attention by

17 Mr. Tieger - no offence - it was a mistake on our part, but nevertheless

18 we did file a reply yesterday to the Prosecutor's position. But I can't

19 urge enough to the Court the need to go through these, I won't say highly

20 technical, but very significant issues vis-a-vis the differences between

21 Hague law and Geneva law and various other matters as it plays into crimes

22 against humanity.

23 MR. MISETIC: Sorry. I just wanted to clarify one point, Your

24 Honour. We did file a motion for leave to exceed word count this morning,

25 just so the Court is aware of it.

Page 70

1 JUDGE MOLOTO: Thank you. Is there any reason to have oral

2 argument on this? Any reason why we couldn't put everything on paper?

3 MR. KEHOE: Your Honour, it's always -- I found it to be very

4 helpful in a -- in issues such as this to address outstanding questions,

5 and just take a short period of time after Your Honours have been versed

6 on all of the arguments made by the respective defendants and by the OTP,

7 to take some short period of time to clarify any outstanding issues.

8 There are some limitations word wise and space wise that preclude

9 a more extensive discussion about a very, very important issue; and when

10 you examine our briefs regarding the challenges specifically to crimes

11 against humanity you'll see how, I don't want to say complex, but detailed

12 the actual case law is in support of that issue.

13 That being said, Judge, I submit that it would be extremely

14 helpful for the Chamber to take that additional time for oral argument.

15 We can do it into the night of one of those time frames, anything that

16 Your Honours would like, but I would impress upon the Court the need to

17 discuss that in an open forum.

18 MR. TIEGER: Your Honour, if I may.

19 [Trial Chamber confers]

20 JUDGE MOLOTO: Mr. Tieger.

21 MR. TIEGER: Yes, Your Honour. There may have been an impression

22 by the mention of the possible dates with -- among the parties that this

23 was a joint request. The Prosecution has not requested oral argument.

24 Obviously, it anticipates that if the Court had deemed it necessary, in

25 light of the original request in the written submission for oral argument,

Page 71

1 the Court would have indicated to the parties it desired that to happen.

2 The only -- the only thing I would note in addition is that

3 these -- the written submissions have been extensive, and by my

4 calculation the Defence submissions have totaled approximately 17.000 or

5 18.000 words. I accept fully that any overage was made in good faith and,

6 and I don't raise an issue with that. But that does exceed the word limit

7 of a pre-trial brief, and I think it has been extensively addressed. But

8 I leave it to the Court whether any additional argument is deemed

9 necessary in its view.

10 MR. KEHOE: One last issue. If I indicated that -- that

11 Mr. Tieger agreed to oral argument, I didn't mean to indicate that. I my

12 indication was simply on the date that -- if Your Honour was going to --

13 Your Honours were going to entertain it, that it would appear from

14 consultation with counsel pursuant to Mr. Pittman's instructions that we

15 would come up with this date.

16 I would say with -- finally, with regard to this, Judge, if we are

17 looking into various areas such as reducing the space or reducing the

18 indictment, et cetera, these particular motions will go directly to that

19 and the determination to significantly reduce the indictment that's before

20 us. That's how crucial the legal issues are that are before the Court in

21 these motions.

22 JUDGE MOLOTO: The Chamber is inclined to request maybe a page

23 just giving grounds, written grounds why you need to be heard orally on

24 these issues, because we're not absolutely satisfied with what we have

25 heard this afternoon, and then the Chamber would consider that and come up

Page 72

1 with its decision after hearing written submissions.

2 MR. KEHOE: Yes, sir.

3 JUDGE MOLOTO: Thank you. Other pending motions relate to the

4 fact that in the last Status Conference, the Defence teams did not object

5 to the Prosecution's combined notice of compliance and motion for

6 protective measures filed on the 19th of October last year. I Guess I'm

7 right there.

8 The Trial Chamber once again informs the parties that a decision

9 will be coming shortly on that point, on that motion.

10 And the other motion pending are also that of General Ivan Cermak

11 and General Mladen Markac's motions for access to confidential testimony

12 in the Martic, Slobodan Milosevic, and Babic cases, as well as Seselj. I

13 imagine the parties are aware this Chamber is not seized of those motions.

14 Those motions are before the respective Chambers that are dealing with

15 those cases, and this Chamber is not in a position to tell the parties

16 when to expect a decision from those various Chambers.

17 Okay? I guess we'll just have to wait for them to respond.

18 Unless anybody has got anything more to say. Mr. Tieger, do you

19 have anything to say on that.

20 MR. TIEGER: Not at this point, Your Honour, no.

21 JUDGE MOLOTO: Mr. Kehoe?

22 MR. KEHOE: No, Your Honour.

23 JUDGE MOLOTO: Mr. Prodanovic?

24 MR. PRODANOVIC: [Interpretation] No, we have nothing to add.

25 Thank you.

Page 73

1 JUDGE MOLOTO: Mr. Separovic?

2 MR. SEPAROVIC: [Interpretation] No, Your Honour.

3 JUDGE MOLOTO: Thank you very much. Shall we then move on to the

4 item of disclosure.

5 Now, the state of the disclosure under Rule 66, 68, and 70 should

6 actually be clarified, I think, by you, Mr. Tieger. Apparently

7 Mr. Markac's counsel sent an e-mail to you, I suppose, on the 5th of

8 February, which was copied to the Trial Chamber via the SLO; and in that

9 e-mail, he was requesting a consolidation and streaming lining of the

10 disclosure under the various case numbers. Do you have anything to say?

11 MR. TIEGER: Yes, Your Honour. With respect to this issue

12 specifically and the issue somewhat more globally, I don't know how much

13 of an opportunity the SLO had to share with the Bench the discussions at

14 the 65 ter, which were somewhat extensive on this issue and I think

15 somewhat constructive, but if not I'll try to recap those for the

16 Chamber's benefit quickly.


18 MR. TIEGER: Essentially, we have been in very active and direct

19 contact with the Defence about disclosure matters for some time now. We

20 have put our case management teams together to resolve any -- to identify

21 and resolve any issues. That has been, again, by consensus as

22 acknowledged explicitly at the 65 ter conference, extremely successful.

23 We're continuing to work at that.

24 One of the projects under way is a kind of revamping of the entire

25 disclosure logging process, so we can ensure that, to the extent humanly

Page 74

1 possible, that every -- that all disclosures have been received and are

2 accessible. With regard to specific problems of the type that the Court

3 mentioned before, we are addressing those directly in the meantime, and

4 that, as I indicated, seems to be as successful an approach as anyone here

5 can envision. And we remain committed to pursuing that approach in an

6 effort to ensure that all existing problems are resolved and all

7 prospective problems are identified and prevented in advance if possible.

8 JUDGE MOLOTO: Mr. Tieger, at the last 65 ter conference, the

9 Prosecution had indicated that there were only about eight witness --

10 THE INTERPRETER: Microphone, Your Honour, please.

11 JUDGE MOLOTO: I'm sorry. I will repeat myself.

12 At the last 65 ter conference, the Prosecution indicated that

13 there were about eight witness statements outstanding; then the Defence

14 indicated that, in fact, there were about 20 translations of such

15 statements outstanding. Now, the number eight and 20, I would have

16 thought, by this time, would have been resolved, whether it was 20 or

17 eight. But, of course, we have heard this of afternoon, the startling

18 figures that have now been raised by Mr. Separovic saying that there are

19 41 statements and 300 documents that are not still outstanding. Are you

20 able to --

21 MR. TIEGER: I think so.

22 JUDGE MOLOTO: -- clear us on these points?

23 MR. TIEGER: I'll do my best, although I may not be able to

24 identify the specific context in which each number arose.

25 What I am aware of is that they referred, on occasion, to

Page 75

1 different issues. One of the issues that arose was how many statements

2 were translated. Was the -- were there statements that the Defence had

3 that had not yet been translated. Part of that -- part of that was

4 addressed in, as I recall, in a previous 65 ter conference and Status

5 Conference, by noting that not all statements disclosed to the Defence

6 under various Rules would be translated because they were not statements

7 of anticipated witnesses; and then I think the figure eight was, to the

8 best of my recollection, a figure that related to specific identified

9 statements that the parties seemed to agree were statements of witnesses

10 likely to be or intended to be called.

11 Having said that and without going into the details of all that,

12 my current understanding is that with respect to witnesses, who we expect

13 now will be on the Prosecution witness list, that those statements have

14 been translated and disclosed.

15 Now, with respect to the number of documents identified by counsel

16 a few moments ago, I think that's largely embraced by a communication that

17 the Prosecution sent to the Chamber on January 22nd, I believe, in

18 response to an end of the year inquiry from the SLO. And what we

19 indicated then, and what we indicated also at the Status Conference today,

20 was that there were of course any number of, indeed, no doubt a large

21 number of documents disclosed for various reasons that would not

22 necessarily be the subject of translation, because they had not been

23 identified as prospective exhibits or the witnesses had not -- the

24 Prosecution had not made a determination those people should be called.

25 In the communication, I indicated to the Court that there were

Page 76

1 pending translations, and there would also be additional documents

2 identified as we finalised the exhibit list and finalised the list of

3 witnesses for whom -- for which translations would have to be sought. And

4 I had communicated with the translation services of the institution to

5 determine whether the anticipated documents would present a problem in

6 getting -- it being translated by March 16th; and as I indicated in the

7 communication to the Chamber, I was advised that those documents should be

8 translated.

9 I further indicated that I would keep the Court apprised of any

10 change in that situation if we were advised that that date was in jeopardy

11 and that there would be some documents that would not be translated by --

12 at the same time we submitted the 65 ter list. And I indicated the same

13 thing at the 65 ter today.

14 I continue to monitor the progress of translations on a very

15 regular basis. My current information is, I think, relatively positive.

16 But as I said in the communication, I will alert the Chamber if the pace

17 is lagging. And I've also taken steps to ensure that if any documents are

18 not translated by that date, that they will receive the highest priority

19 for the translation services.

20 As I know the Court is aware of, because it was raised in previous

21 conferences, the translation resources of the institution are limited, and

22 we were often relegated behind cases that were either in trial or had

23 trial dates pending before this one. And to overcome that, I have been

24 engaged in a regular process of communicating with them, indicating the --

25 what I had communicated to the Court, and urging them to devote sufficient

Page 77

1 staff to maximise, to the extent humanly possible, that the documents

2 would be produced by the date I indicated to the Court.

3 JUDGE MOLOTO: Can the Chamber accept that your short answer is

4 that the time line for disclosure would be March 16th unless otherwise

5 advised by the translations department?

6 MR. TIEGER: Yes, Your Honour. That is what I -- that is what I

7 indicated on January 22nd, and I --

8 JUDGE MOLOTO: And you repeat that today.

9 MR. TIEGER: And I'm pushing as hard as possible for that to

10 happen, and I will let the Court know if that seems to be -- if something

11 is happening that suggests that that date won't be met.

12 JUDGE MOLOTO: Okay. Then the Court will then ensure that the

13 time line, as of now, will be March 16th unless you hear otherwise from

14 the translation department. We understand that 68 disclosure is a

15 continuing exercise; but other Rules, 66 and 70, we'll be looking at March

16 16 --

17 MR. TIEGER: That's --

18 JUDGE MOLOTO: -- unless we hear otherwise.

19 MR. TIEGER: That's correct, Your Honour. Yes. That's exactly

20 what I tried to indicate.

21 JUDGE MOLOTO: Thank you very much. Then again in an e-mail of

22 the 2nd of February this year to the Trial Chamber, the Prosecution

23 indicated that they will provide the 65 ter materials and comprehensive

24 exhibits list electronically on CDs and DVDs and will try to provide an

25 electronic version of the 65 ter list with hyperlinks to the documents.

Page 78

1 The Prosecution will inform the Trial Chamber in advance if the hyperlink

2 option will not be feasible.

3 I guess the Prosecution asked for confirmation from the Trial

4 Chamber that no master hard copy is needed to be provided to any of the

5 parties but that the electronic set would suffice for 65 ter disclosure.

6 What's your response to that, Mr. Kehoe or Mr. Misetic?

7 MR. MISETIC: [Interpretation] Your Honour, I -- well, I guess let

8 me speak on all of the disclosure issues that Mr. Tieger has addressed.

9 First, I with agree with him that -- that we have worked

10 diligently on both sides of the aisle to resolve the outstanding issues.

11 They have been significant since our last Status Conference, and there has

12 been good faith on both sides, I think, to resolve those as quickly as

13 possible.

14 JUDGE MOLOTO: Thank you very much.

15 MR. MISETIC: [Interpretation] But just so you're aware of the

16 status of things, according to our Defence team, again, just for purposes

17 of -- so you know where we are, we're waiting for 30 documents to be

18 disclosed. It's our understanding, and I think Mr. Tieger confirmed it

19 again, the documents which have been provided to us, but which the

20 Prosecution has indicated they do not intend to translate, are documents

21 that will not be used by the Prosecution; and to date, according to our

22 count, there are 477 such documents that far been provided to us. Again,

23 I just want to make that point clear.

24 With respect to this last question of master hard copies, I think

25 that will be sufficient. I -- I qualify that with that one reservation,

Page 79

1 which is that's assuming that we work out all of these technical issues,

2 which I'm hopeful that we're going to get worked out. On the disclosure,

3 we're anticipating a new disclosure log coming from the Prosecution. The

4 problems, basically, on our side has been that the disclosure log has been

5 very difficult to actually find the documents that are exactly listed on

6 the disclosure log.

7 Assuming that gets worked out, we obviously will be able to find

8 the documents electronically and then go ahead and print them ourselves.

9 But to the extent that if there is a problem and down the line and it

10 becomes simply easier to obtain hard copies of the documents, we may ask

11 that. I don't anticipate that right now, because it's not -- I think

12 it's easier for use to have an electronic form as well, but I just wanted

13 to make sure the Court, given that there are still some outstanding

14 issues, that may be something we explore down the line. But I am hopeful

15 that's going to be resolved in the next two weeks. Thank you.

16 JUDGE MOLOTO: Mr. Prodanovic. What's --

17 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour. We have

18 nothing to add. Thank you.

19 JUDGE MOLOTO: Are you happy with electronic copies only, without

20 hard copies?

21 MR. PRODANOVIC: [Interpretation] Yes, we are.

22 JUDGE MOLOTO: Thank you very much.

23 Mr. Separovic.

24 MR. SEPAROVIC: [Interpretation] Thank you, Your Honour. The same

25 with us. Electronic copies are fine.

Page 80

1 JUDGE MOLOTO: Thank you very much.

2 From the point of the view of the Bench, if the Bench could be

3 supplied with at least one hard copy.

4 MR. TIEGER: The senior legal officer made that known, and we

5 understand that. Thank you.

6 If I could-- sorry to make any complications in what was about to

7 be a fairly simple issue, but just to clarify two matters. Number one, I

8 think that the electronic disclosures for 65 ter purposes would be

9 independent of the -- it wouldn't be dependent on the disclosure log, so I

10 think documents will be accessible in that disclosure alone. So it's not

11 that the -- and that was the mention of hyperlinks I think. So that's the

12 objective. Maybe that's some assurance.

13 Number two, it's correct that the Prosecution does not intend to

14 translate -- unnecessarily translate documents that won't be exhibits, but

15 that process is ongoing. We're finalising exhibit lists. So the fact

16 that a document has not been translated and is indicated on a current

17 disclosure log currently as untranslated can mean any number of things,

18 including the fact that it's pending translation or the fact that -- that

19 there has been a decision affirmatively made not to use it as an exhibit,

20 or that that decision whether or not it goes in the exhibit list is still

21 awaiting the finalisation of the exhibit list.

22 So I don't -- didn't want counsel to be misled into thinking there

23 hadn't been a misrepresentation that specific documents that hadn't been

24 translated at this point or for which they had not yet received

25 translations will not be on the exhibit list.

Page 81

1 JUDGE MOLOTO: But to the extent that any of the documents will

2 the not be used for the purposes of the trial, both the Chamber and the

3 Defence would be advised at some time in the near future so they can

4 discard and forget about those documents.

5 MR. TIEGER: To the extent possible, yes, Your Honour. And

6 perhaps that's one of the virtues of our fairly regular contact, and we

7 will certainly do our -- it certainly will be in the near future,

8 obviously, that filing will be on March 16th. But if we can facilitate

9 that in the interim, we're happy to do so and if we can find a way to

10 indicate certain documents that the Defence need not concern themselves

11 with, we'll try to do so.

12 JUDGE MOLOTO: Thank you. The Bench appreciates and notes the

13 virtues of regular contact and encourages that contact to be maintained.

14 MR. MISETIC: [Interpretation] Your Honour, if I may just quickly.

15 JUDGE MOLOTO: Yes, Mr. Misetic.

16 MR. MISETIC: [Interpretation] My proposal is that we work this out

17 amongst ourselves. I know that we have a long agenda still to, but I want

18 to make sure the record is clear. Our position -- our understanding is

19 somewhat different than that, and the reason is that the disclosure log

20 actually states that a translation is pending for documents that are

21 currently in the process of being translated.

22 We did have discussions about this issue at both of the last

23 Status Conferences, where my other colleagues raised the fact that they

24 could not read documents because they hadn't been translated. And I

25 believe that it was represented that if we haven't asked for a

Page 82

1 translation, you can rely on the fact that we don't intend to use the

2 document. Rather than take it -- more of the Court's time, my proposal is

3 that Mr. Tieger and I and the rest of the counsel try to work this out

4 ourselves, so we don't take up more time of the Court.

5 JUDGE MOLOTO: Thank you very much, Mr. Misetic, and the Court

6 indulges that. Would you please make sure that you sort that out amongst

7 yourselves as quickly as you possibly can.

8 MR. MISETIC: [Interpretation] Yes, Your Honour.

9 JUDGE MOLOTO: Thank you. The other point was that the

10 Prosecution indicated at the last Status Conference that it was awaiting

11 approval and Rule 70 from the provider of certain documents, approximately

12 a hundred of them, before it could disclose them to the Gotovina defence

13 and the other Defences. Has this approval been given by now?

14 MR. TIEGER: No, Your Honour. This has been a continuing matter,

15 which is why these particular Rule 70 documents have arisen on a number of

16 Status Conferences and 65 ters. That's not to say that they're the only

17 Rule 70 documents with which the OTP must deal and for which it must seek

18 permission, but somehow these were identified quite some time ago. And

19 there was some focus on them and that the pending permission has not yet

20 occur. I will say that the provider was gracious enough to contact us

21 recently as of two days ago, in fact, to let us know that they're

22 continuing their review and that the matter remains in process.

23 That was another matter, I may add, that I addressed in the

24 response to the end of the year update from the senior legal officer, and

25 I indicated at that time that we had taken some extraordinary steps in an

Page 83

1 effort to facilitate this and had been advised by the provider's

2 representative that we had done everything possible at that time, even

3 beyond that. After we received the Scheduling Order from the Court, I

4 contacted the provider and let them know what the new deadlines were in an

5 effort to encourage an expedited review. And as I say, the most recent

6 communication is the one I indicated to the Court.

7 JUDGE MOLOTO: In the communication you've just received recently

8 from the provider, is there any indication of a time line by when they

9 think they can provide this information, this permission?

10 MR. TIEGER: No, Your Honour, there is not. All I can say is

11 that -- as I mentioned, that they are aware of our time line, and perhaps

12 it's encouraging that they did not indicate in this communication that

13 that would be in jeopardy. And I -- in fact, I will contact them again

14 and do my best to determine whether there is a projected completion of

15 review date.

16 JUDGE MOLOTO: The Trial Chamber will appreciate that very much.

17 Thank you so much. I don't imagine that any of the Defence counsel have

18 anything to say or let me not preempt. Mr. Kehoe?

19 MR. KEHOE: No, Your Honour.

20 JUDGE MOLOTO: Mr. Prodanovic?

21 MR. PRODANOVIC: [Interpretation] No, Your Honour.

22 JUDGE MOLOTO: Mr. Separovic?

23 MR. SEPAROVIC: [Interpretation] No, Your Honour.

24 JUDGE MOLOTO: Thank you very much. We'll then move on to the

25 next point. General Gotovina's Defence counsel had asked for instructions

Page 84

1 in an e-mail to the senior legal officer on the 5th of February this year

2 on how to interpret the Trial Chamber's 14 July 2006 non-disclosure order,

3 particularly on whether the Defence is allowed to disclose previous

4 witness statements provided to the Prosecution, to the witnesses

5 themselves, and to their governments.

6 The Trial Chamber finds the question redundant since the referred

7 order clearly states what should be done. Moreover, the Trial Chamber is

8 a little surprised that it has been asked ex parte and confidentially not

9 to disclose the specifics of the matter to the Prosecution. The Trial

10 Chamber has since been advised that this morning the matter was ventilated

11 openly between the parties. Now, the Prosecution is aware of the

12 Defence's intentions to approach some of the witnesses who might be

13 Prosecution witnesses.

14 Yes, Mr. Misetic.

15 MR. MISETIC: [Interpretation] I believe that the Prosecution has

16 always been aware of our intention to approach Prosecution witnesses.

17 That issue was specifically litigated at length last year with the Trial

18 Chamber, with the Trial Chamber concluding in the 14 July order that there

19 is nothing precluding the Defence from contacting Prosecution witness,

20 with the provision that the Prosecution had 14 days from that order with

21 respect to any witnesses they have disclosed to us to seek protective

22 measures for those witnesses under Rule 75, which would then require some

23 sort of methodology whereby we could contact those protected witnesses

24 under Rule 75 through the Prosecution.

25 Subsequent to that, in September, the Prosecution filed a request

Page 85

1 for such measures with respect to I believe six witnesses. The Defence

2 did not object, and that motion is still pending before the Chamber with

3 respect to those six witnesses only. With respect to every other witness

4 that the Prosecution has disclosed to the Defence, the 14 July order makes

5 clear that we can go ahead and contact them. So the purpose of the ex

6 parte or confidential nature of the request wasn't to contact witnesses

7 that we shouldn't be contacting; but rather in order to protect work

8 product of the Defence in terms of who specifically we're contacting and

9 why, that that issue be addressed because the parties obviously have a

10 right to prepare their own cases in accordance with Rule 70 and to protect

11 their work product. That was the only intention.

12 Otherwise, it's our understanding pursuant to the July 14 order

13 that we have the right to contact Prosecution witnesses, except for those

14 that are currently pending before the Chamber, those six witnesses.

15 JUDGE MOLOTO: Thank you very much for the explanation. At least

16 that's -- what caused us surprise was the fact that it was confidential

17 and ex parte to the Chamber. But now given your explanation, it's even

18 more surprising that the request for interpretation has been asked at all,

19 if this matter has been litigated and ventilated in court and decided

20 finally. But no need to go into it.

21 MR. KEHOE: Judge, we're just trying to do the right thing. We

22 were trying not to contravene any order, and people were asking us for

23 this. Governments were asking me in particular for this; and, candidly,

24 Judge, I was trying to cross the T's and dot the I's and not do anything

25 improper.

Page 86

1 JUDGE MOLOTO: Thank you for the crossing and the dotting.

2 Specifically, Mr. Tieger, this progress on the Rule 68

3 disclosures. I know it's a continuing exercise, but we want to know what

4 progress has been made in that direction.

5 MR. TIEGER: Well, it's a little hard to identify the progression

6 of an endless exercise, but we -- I mean, part of that process involves

7 going through materials that are not accessible to the Defence. And we

8 have been concentrating on that to ensure that we get through it as early

9 as possible. The -- I will confess to the Court, I did not check the

10 status of that progress immediately before this conference.

11 But the last time I did, which was not long ago, it seemed like we

12 were reasonably on target for ensuring that we had been through that

13 material well in advance of the commencement of trial. But in light of

14 the Court's question and my response, it's -- I think it would be prudent

15 if I went back and double checked to see exactly the pace of our progress

16 through those materials.

17 JUDGE MOLOTO: And the Chamber does appreciate that it's an

18 endless exercise. However, the Rule does say to the extent that the

19 Prosecution knows of such material. So at least to that extent, it is not

20 an endless exercise. And that's only the reason we asked the question, to

21 the extent that you know of the existence of any such material, how far

22 are you in disclosing that which you know about.

23 MR. TIEGER: I think we're quite current, Your Honour.

24 JUDGE MOLOTO: You're quite current.

25 MR. TIEGER: And we have processes in place to ensure that those

Page 87

1 documents are disclosed as -- as soon as practicable, and I think we've

2 been successful at that.

3 JUDGE MOLOTO: Are you able to give a time line on as soon as

4 practicable.

5 MR. TIEGER: I think it's only -- it's only a matter of logistics.

6 We bring them to the attention of the those persons responsible for

7 collecting them and sending them; and within a relatively short period of

8 their, meaning what, a week, two weeks at most, of their identification,

9 we ensure that they're sent out, barring some logistical problem or

10 emergency that interferes with that. In other words, if we could humanly

11 do it, if I read a document and it came within my actual knowledge that it

12 was Rule 68, I'd hand it right over the bar table to counsel; and to the

13 extent we can do that given our distances, we attempt to do so.

14 JUDGE MOLOTO: Okay. The next one - again, I'm sorry I'm coming

15 back to you again, Mr. Tieger - comprehensive 92 bis, 92 ter protective

16 measures motions. Any progress in that direction?

17 MR. TIEGER: We had a discussion about that at the 65 ter.

18 Prosecution was asked by the senior legal officer to identify some date

19 between the submission of the pre-trial brief and witness list and exhibit

20 list and the submission of the Defence pre-trial brief that would be

21 suitable for the submission of 92 bis motions.

22 And I indicated that we would look at that as soon as possible and

23 provide some feedback to the Court in that regard. So I haven't -- we

24 haven't had an opportunity to act on that yet, but my understanding is

25 that essentially the Prosecution has been asked to identify some date

Page 88

1 between that time when -- when that can be done.

2 JUDGE MOLOTO: And the Prosecution will indicate that date?

3 MR. TIEGER: Correct, Your Honour. We'll get back to the -- we'll

4 do our best to get back to the Court sometime at the beginning of next

5 week or so.

6 JUDGE MOLOTO: Thank you very much.

7 Any comment on that point from the Defence side?

8 MR. KEHOE: Not at this time, Your Honour, no.

9 MR. PRODANOVIC: [Interpretation] Thank you, Your Honour, no.

10 MR. SEPAROVIC: [Interpretation] No, thank you.

11 JUDGE MOLOTO: Thank you very much.

12 Now, just as an overarching kind of question, the Trial Chamber

13 would be interested to find out when it can expect disclosure to be

14 concluded. Now, just as a general -- is it possible to give us this

15 answer, say by the 20th of March?

16 MR. TIEGER: If I understand the Court correctly, I think it would

17 be possible to give the Court an answer by -- well, the 20th of March. I

18 think -- Your Honour, is that -- I need some clarification. You'd like us

19 to get back to the Chamber in writing by a certain date as to when

20 disclosure would be completed in its entirety, other than Rule 68

21 obviously.

22 JUDGE MOLOTO: Barring Rule 68, yes.

23 MR. TIEGER: Well, if I may, Your Honour. Unless the Court needs

24 a specific date here at the moment, I would be more comfortable, and I

25 think I'd be acting more appropriately if the Court gave me an opportunity

Page 89

1 to consult with my team and make sure that I'm not overlooking some --

2 some problems and not committing us to a date that -- that generates

3 difficulties that I'm not thinking of at the moment. So if you wouldn't

4 mind, I'd appreciate that.

5 JUDGE MOLOTO: Fair enough. And when you have consulted with your

6 team, would you be kind enough to relate to the SLO the date that you

7 suggest.

8 MR. TIEGER: Of course, I'd be pleased to do so.

9 JUDGE MOLOTO: Thank you, Mr. Tieger.

10 At this stage, the Chamber just wants to reiterate the time lines

11 as envisaged up to the commencement of the trial pursuant to the

12 Scheduling Order of 17th January.

13 The Prosecution is expected to file its submissions pursuant to

14 Rule 65 ter (E) by Friday the 16th of March, and a Status Conference is to

15 take place on Tuesday, the 3rd of April, beginning at 2.30 in the

16 afternoon in a courtroom to be advised. And the Defence is to file their

17 submissions pursuant to Rule 65 ter (F) by Thursday, the 5th of April.

18 The Pre-Trial Conference pursuant to Rule 73 bis is to take place

19 on Friday, the 27th of April. Opening statements by the Prosecution

20 pursuant to Rule 84 is to take place on Monday, the 7th of May. And an

21 opening statement by the Defence, if any at this stage, is to take place

22 on the 8th of May, and evidence will be presented starting 9th of May.

23 Okay. I guess all those time lines are in the Scheduling Order,

24 but the Chamber just wanted to reiterate them to the parties.

25 The next item will be the potential conflicts of interest between

Page 90

1 the various Defence teams.

2 May the Chamber please move into private session.

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16 [Open session]

17 JUDGE MOLOTO: Now that we're in --

18 THE REGISTRAR: We're in open session, Your Honour.

19 JUDGE MOLOTO: Thank you very much. The Court will adjourn for 20

20 minutes and come back at five to 6.00. Court adjourned.

21 --- Recess taken at 5.35 p.m.

22 --- On resuming at 5.58 p.m.

23 JUDGE MOLOTO: Can we move into private session, please.

24 [Private session]

25 (redacted)

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Page 99

1 (redacted)

2 [Open session]

3 THE REGISTRAR: We're now in open session, Your Honours.

4 JUDGE MOLOTO: Thank you very much.

5 May I pick up with you, Mr. Separovic now. Before we went to the

6 break, you sounded in a hurry to get a decision whether or not you should

7 stay in this trial. It looks like in fact the decision in the first place

8 should be your decision and not anybody else's. So to the extent that you

9 are being delayed, it looks like you have nobody but Mr. Separovic to look

10 to. Would I be right in surmising that?

11 We have the -- the opinion of the ADC. I'm sure you have read it,

12 and it's for you to decide how you're going to conduct yourself based on

13 that opinion. Am I right?

14 MR. SEPAROVIC: [Interpretation] Your Honour, I will reiterate what

15 I said in closed session before. There is nothing that I can say in

16 private session that I cannot say in public. That's one thing.

17 Second, I assert that I am not in a conflict of interest, that I

18 am not a necessary witness, and that's why I am ready with my colleague

19 Mr. Mikulicic, who will speak with your leave on legal issues and legal

20 standards, to speak on facts.

21 Third, if I were to leave two and a half months before the

22 beginning of trial, General Markac would be irreparably prejudice because

23 he would no longer be on an equal footing with other Defence teams or the

24 Prosecution team, because a new Defence counsel cannot get sufficiently

25 prepared in two and a half months.

Page 100

1 As I said, I do not believe I am in a conflict of interest, but

2 let me explain once again why I am looking forward to an early decision.

3 The Trial Chamber is the one to decide. It is not my decision. Weighing

4 all the arguments for and against, the Trial Chamber has to decide in

5 order to avoid a situation in which I could be accused of contempt of

6 court or of violating our code of conduct, our professional code of

7 conduct.

8 It is my position, therefore, that I am not a necessary witness,

9 that I do not have a conflict of interest, and that General Markac would

10 be irreparably prejudiced were I to leave at this point. But I believe

11 that it is up to the Trial Chamber to decide.

12 I hope that you will allow me and Mr. Mikulicic to further explain

13 our position, if necessary.

14 JUDGE MOLOTO: Don't you want to explain your position to the full

15 before you sit down?

16 MR. SEPAROVIC: [Interpretation] Do you want me to explain why I

17 believe I do not have a conflict of interest to substantiate my position?

18 JUDGE MOLOTO: I'm not quite sure whether at this point in time

19 the Chamber is trying to determine whether you are or you are not in -- in

20 a conflict of interest. The Chamber is presented with an opinion from the

21 ADC, which makes certain findings about your position in particular, and

22 we -- that's why I said to you a little earlier when you came back that

23 based on that position by the -- of the opinion, the decision is actually

24 yours. And I hear you keep saying you want a decision from the Bench, but

25 I don't think we are at that stage yet. I thought -- I think we are at a

Page 101

1 stage where you've got to indicate what you intend to do given the

2 opinion, without giving motivation for it. Are you carrying on or are you

3 not carrying on?

4 MR. SEPAROVIC: [Interpretation] Thank you, Your Honour. I think

5 we have understood each other. My answer is yes, I wish to continue, and

6 I'm going to continue all the way until a decision is made by this Trial

7 Chamber to make me leave if the Trial Chamber chooses to make such a

8 decision. I can present further arguments, if you wish.

9 JUDGE MOLOTO: I don't think that it's necessary.

10 JUDGE ORIE: Could I ask you, Mr. Separovic, a few questions.

11 First, on the matter itself. Let's just assume that there would be any

12 dispute about who would have been responsible, Ministry of Justice,

13 Ministry of Defence, high-ranking military -- high-ranking officers about

14 what crimes that were there to be investigated and to -- and to be

15 prosecuted. If you, as a witness, would have to testify on these kind of

16 matters, do you see that there is a -- that you might be in a dilemma when

17 you would say, "No, it was mainly the Ministry of Justice," then you would

18 perhaps take some blame for things that have happened. If you with say,

19 "No, it was the Minister of Defence," or you'd say,"It was the

20 high-ranking officers," do you understand that your own position is

21 involved when testifying on these issues if you would be called as a

22 witness in the cases against the three accused?

23 MR. SEPAROVIC: [Interpretation] Yes, Your Honour, I'm aware of

24 that. But you must take into account my assertion and my belief that the

25 matters that I could be asked to speak about could easily be the subject

Page 102

1 of testimony of another ten very competent people. If the question is

2 whether somebody's culpable or not, I cannot speak to that. Therefore,

3 such a situation could not arise in my opinion.

4 As to how the justice system functioned, there are any number of

5 very competent witnesses.

6 JUDGE ORIE: Mr. Separovic, let's just assume that the Chamber

7 would consider the former Minister of Justice, the first one, the highest

8 responsible for perhaps what happened in the Ministry of Justice to

9 testify on these matters and not the 13 other witnesses you're suggesting.

10 What then?

11 The Prosecution perhaps plan to have you as one of the prominent

12 persons, because I do understand that you -- there's no dispute about you

13 being a former Minister of Justice of Croatia. Is that -- okay. Let's

14 just assume that the Prosecution would consider you to be the best witness

15 or the Chamber or any of the other counsel. What then?

16 MR. SEPAROVIC: [Interpretation] Your Honour, but that's a

17 hypothetical question. You're asking me to respond to something that

18 might, but also might not happen. If the Prosecutor deemed that this was

19 a potential subject of contention, they could have let us know much

20 earlier. Why would this issue become suddenly a matter of dispute two and

21 a half months before the start of trial?

22 Maybe the purpose is to delay the trial, to put a new problem

23 before the Defence, but if --

24 JUDGE ORIE: Mr. Separovic, that's not what I asked you. I didn't

25 ask you to comment on what the possible consequences are because that's

Page 103

1 clear enough.

2 Then may I ask you one other question, perhaps put something to

3 you and see whether you would agree or disagree with that. You say the

4 Trial Chamber should decide. You may have noticed that from the words of

5 Judge Moloto that he considers it's the first duty of counsel to consider

6 the matter and to see whether he has to take a decision.

7 Now, you have alluded to the possibility that this Trial Chamber

8 would take a decision. The Chamber has discussed the matter; and on the

9 basis of the documents we received, there's still another possibility, and

10 that is that the Executive Council of the ADC would take a decision, and

11 from what I understand not primarily if you withdraw but especially if you

12 would, as we now understand you're not intending to, if you would not

13 withdraw, which might have quite drastic consequences not only for this

14 case but also for your -- for your position as a Defence counsel in this

15 Tribunal, because you know that membership of the ADC is one of the

16 requirements for Defence counsel to act before this Tribunal.

17 That's part of a scenario I did not hear any comment on from your

18 side. Could you -- could you tell me whether what you think the role of

19 the ADC in this respect would be, especially after in the advisory opinion

20 it is established -- at least it's said that there are good reasons to

21 believe that there is already a conflict of interest.

22 MR. SEPAROVIC: [Interpretation] Your Honour, what is most

23 important to me are the interests of my client. No other interests come

24 close. Therefore, I hold that the findings of the ADC are of advisory

25 nature. It is possible that my bar association, having heard legal

Page 104

1 arguments and having studied the precedents decided upon by this court and

2 precedents from common law which they may not have been aware of earlier,

3 will change their opinion.

4 But I would appreciate it if these precedents be taken account and

5 my bar association decides whether it would be possible to conduct a

6 vetting process, a verification process to establish whether other

7 witnesses could be called to provide the testimony on matters that I would

8 be asked to testify to, and the bar association should hear about such

9 precedents.

10 JUDGE ORIE: I was -- as a matter of fact, I was referring to the

11 ADC, which is a bar association as well and which decides on membership of

12 its members. So apart from that, I'm a little bit surprised that you

13 would leave it to the, I then take it, the Croatian Bar Association to see

14 whether or not this Chamber should call other witnesses rather than --

15 whether there would be a possibility for that. But let's not focus on

16 that. But especially your position within the ADC --

17 MR. SEPAROVIC: [Interpretation] It must be a misunderstanding.

18 I'm sorry. It is a misunderstanding. I'm sorry.

19 With your leave, when I spoke about the bar association, I meant

20 the ADC, and I meant exclusively the ADC. They are the only bar

21 association that I regard as mine.

22 I thought perhaps they could hear my arguments and maybe change

23 their opinion. If they want to exclude me, to make me withdraw, maybe

24 they could organise an adversarial hearing and a decision could be made on

25 that basis. So far they have only provided findings of advisory nature.

Page 105

1 I would appreciate it if you would allow me and give me the

2 possibility of entering into a discussion, a polemic with them.

3 JUDGE MOLOTO: Yes. Would you agree with me that if there's an

4 apparent risk of -- even if you would take it that at this moment there's

5 no conflict of interest, that if there is an apparent risk, there would be

6 one in the future that would be a reason to withdraw as well?

7 MR. SEPAROVIC: [Interpretation] No, Your Honour. I do not believe

8 that is the case. I don't think we should go that far in our

9 interpretation and say that there is that possibility, because then we

10 could easily argue there is a possibility of abusing that situation to

11 make me withdraw at a certain stage of the proceedings once they start.

12 That is why my position is different.

13 JUDGE ORIE: I have no further questions for Mr. Separovic.

14 JUDGE MOLOTO: Thank you, Mr. Separovic.

15 If I may address a question to Mr. Karnavas. You've heard what

16 Mr. Separovic said. The advisory opinion is quite clear on his situation,

17 and the Displinary Committee of the ADC decided not to act at this stage,

18 but to defer to the Executive Council because the Executive Council had

19 asked for the opinion. What would be the normal next course of action

20 within the ADC given the answer that we have just got?

21 MR. KARNAVAS: Thank you, Mr. President. First, let me say that

22 the ADC, as a professional association, finds these sorts of issues

23 extremely serious. We are an association to protect the interest of the

24 Defence lawyers but, more importantly, to make sure that the rights of the

25 accused whom we represent are fully protected. So we -- we bear every

Page 106

1 decision we make in mind with the rights of the accused.

2 Now, I was struck by one of the questions that was asked by you,

3 Mr. President, and that was that you had expected the Defence lawyer to

4 have acted on his own -- on his own accord given the decision that was

5 rendered by the ADC. As a policy matter, the ADC expected the same of its

6 members upon receipt of such an advisory opinion.

7 The Executive Committee saw this. Obviously, it felt extremely

8 comfortable with the content of the decision. I think it's a very

9 detailed decision, the situation is rather serious, and that's why I

10 brought Mr. Murphy with me, who is the chair of the disciplinary council.

11 So when this issue came to us, the Executive Committee, we passed it along

12 to the Registrar. We did not act at that point in time thinking that

13 perhaps counsel, because this decision affects more than just the one of

14 the Defence teams, would act on their own accord.

15 I don't believe it's a matter of us misunderstanding the

16 continental system versus the common law system. That's not an issue. We

17 do understand the jurisprudence. We do have rules, and this is a

18 party-driven system. And I think that the one question asked by Judge

19 Orie is very pointed, what if, what if the Trial Chamber on its own wished

20 to call a particular witness on its own, which it is it entitled to do,

21 and that may in this case may be lead counsel, and that poses a grave

22 issue.

23 So, what would the ADC do? Well, frankly, we believe the Trial

24 Chamber should act primarily because the ADC does not want to usurp from

25 the Trial Chamber its authority. For instance, what if ADC were to take

Page 107

1 measures and say, "You must withdraw," and then the Trial Chamber for

2 other reasons decided that the ADC's decision lacked merit and then

3 overruled the ADC? If, on the other hand, from what I'm hearing, today

4 the Trial Chamber is of the opinion that the decision itself should stand,

5 albeit as advisory, then obviously the ADC would have to make a formal

6 request at least to -- to the counsel involved in this case to take the

7 appropriate actions necessary as indicated in the opinion.

8 But, again, what we're concerned primarily is not getting caught

9 in the middle, where we, based on an advisory opinion, take a position,

10 then we're overruled by the Registry or the Trial Chamber. We do keep in

11 mind that the Trial Chamber has set a trial date that, that we don't want

12 to interrupt the proceedings. The ultimate call is up to the Trial

13 Chamber, we believe. But, obviously, if the Trial Chamber were to

14 indicate that this decision stands and it has merit, then, obviously, the

15 ADC would have to take appropriate measures such as requesting, perhaps,

16 the gentleman to strongly consider withdrawing or else.

17 JUDGE MOLOTO: You say the ultimate decision lies with the Trial

18 Chamber. Wouldn't you say the intermediate decision lies with the ADC?

19 MR. KARNAVAS: I've been watching this Status Conference, and you

20 seem to be hitting the head of the nail on each of your questions. Yes,

21 you're quite right, Mr. President. You're quite right. But, again, from

22 a policy position, what we're concerned is being seen as trying to drive a

23 counsel out of a case only to be overruled later on by a Trial Chamber,

24 and that puts us in a very difficult position. But I take your point, I

25 understood your question, and the short answer is, yes. We're the step in

Page 108

1 between.

2 JUDGE ORIE: Mr. Karnavas, you say if the decision of the ADC

3 would be overruled by the Trial Chamber, where do you find the competence

4 of the Trial Chamber to overrule decisions on membership issues in the

5 ADC?

6 MR. KARNAVAS: Well, this is a -- as I understand, this is --

7 they're coming in under Rule 44. What we're -- it's one thing for us to

8 strike someone from the list, for instance, or to say they are no longer

9 in compliance, in compliance with the ADC. But nonetheless the Trial

10 Chamber decides because they set a trial date that they want this case to

11 go forward, and the Trial Chamber could very well say, "Well, albeit we

12 have this advisory opinion, we find that it lacks merit, that perhaps

13 they've reached the wrong conclusion," in which case the Trial Chamber

14 decides irrespective of ADC to keep counsel in the case and overrule the

15 decision of the -- of the ADC.

16 That's our concern. We're being placed in the middle. And that's

17 why when we transferred the matter to the -- to the Registry, we then

18 expect the Registry to take appropriate action.

19 I hope I've answered your question. We are in a delicate position

20 that we don't have quite the enforcement powers that some folks think we

21 have or should have.

22 JUDGE MOLOTO: But you understand, Mr. Karnavas, that the Trial

23 Chamber usually would act upon the complaint of somebody or upon a

24 situation arising and being there virtually in the face of everybody.

25 MR. KARNAVAS: I do, Mr. President.

Page 109

1 JUDGE MOLOTO: And, therefore, to suggest that you are being

2 caught in the middle is really to pass the buck.

3 MR. KARNAVAS: Again, you seem to be hitting it on the head. I'm

4 not trying to quite the buck. I'm trying to navigate through some

5 difficult channels.

6 JUDGE MOLOTO: Indeed, indeed trying to navigate yourself out it.

7 MR. KARNAVAS: But I take your point, Mr. President.

8 JUDGE MOLOTO: Certainly, the Trial Chamber can't be seized of it

9 before it is brought before it as an issue. This issue arose simply

10 because in a joint application, somebody indicated he might call

11 Mr. Separovic, the matter went on appeal, the appeal court said it hasn't

12 arisen yet. It may arise if this happens. However, the advisory opinion

13 says it has arisen, and it is for the ADC, therefore, to decide if it has

14 arisen. Within its own rules and codes, is there a course of action.

15 MR. KARNAVAS: Well --

16 JUDGE MOLOTO: Which would not necessarily be a course of action

17 just yet before the Chamber.

18 MR. KARNAVAS: I understand, Mr. President. Perhaps because I'm

19 more familiar with my own jurisdiction, normally the Court would have

20 stretched in. But, again -- again, in my jurisdiction if there was a

21 conflict of interest to arise that was not brought to the Court's

22 attention by the attorney, the attorney would be sanctioned. So I come

23 from a different culture where it's -- the attorney would have to be

24 pro-active.

25 JUDGE MOLOTO: But understand, Mr. Karnavas, for now it seems to

Page 110

1 me as if the conflict for purposes of the Chamber to act would arise the

2 moment Mr. Separovic was called as a witness and he took the witness

3 stand.

4 MR. KARNAVAS: That's correct.

5 JUDGE MOLOTO: It does seem as if within the rules of the ADC in

6 terms of the advisory opinion, you don't have to wait until that.

7 MR. KARNAVAS: I agree. I think -- I think the opinion is rather

8 clear, Mr. President, in my opinion. And Mr. Murphy is here to address

9 that in a more thorough fashion. But as I read the opinion, and it's

10 rather clear, I think you would be imprudent to wait and see whether that

11 occasion would arise, I think. Because as you have indicated, in essence

12 it has arisen already.

13 JUDGE MOLOTO: And if this Court -- for this Court to be seized of

14 the matter, there ought to be -- there should be some kind of complaint

15 put before the Court.

16 MR. KARNAVAS: Well, we -- we assumed and perhaps wrongly that the

17 advisory opinion was in essence a vehicle for which the Trial Chamber

18 could --

19 JUDGE MOLOTO: Was the indictment.

20 MR. KARNAVAS: Well, that could be as well. I trust,

21 Mr. President -- I trust -- I'm not trying to avoid answering directly,

22 but I'm just trying to, as I've indicated, finesse the situation here.

23 JUDGE MOLOTO: I guess you have told us what you can tell us about

24 Mr. Separovic, and I understand that about Mr. Prodanovic the opinion does

25 say that the conflict has not arisen yet.

Page 111


2 JUDGE MOLOTO: Is there anything you would like to say on that

3 issue?

4 MR. KARNAVAS: I would prefer to have Mr. Murphy address it, but

5 again I think if you read the -- the advisory opinion is rather clear, in

6 my -- in my opinion, in that I don't think -- well, attorney -- counsel

7 always has to -- they know their case better than anyone else, and of

8 course they have to exercise certain -- certain judgement, professional

9 judgement. And I think the opinion does seem to indicate that at some

10 point for all intents and purposes it will arise. At least that's how I

11 read it, or there's a very high probability that it will arise.

12 And in that case, then it begs the question at what point should

13 you act. In my professional opinion, you act as soon as you become aware

14 that the possibility exists that it might arise, as opposed to waiting for

15 the situation to actually come to that point. But then, again, I don't

16 want to go into the merits. Mr. Murphy is much more prepared to answer

17 that question, and I would welcome his input.

18 JUDGE MOLOTO: Thank you, Mr. Karnavas.

19 Mr. Murphy, would you like to add anything?

20 MR. MURPHY: Yes. Thank you, Your Honour. Very briefly. I

21 should say, first of all, because there may have been a certain

22 misunderstanding about what an advisory opinion is and what its effect is,

23 the disciplinary council of the ADC has very, very limited powers. We --

24 we cannot act in any way until we are asked to do so by either a member of

25 the association or in this case by the Executive Committee. This matter

Page 112

1 began because in November Mr. Karnavas, on behalf of the Executive

2 Committee asked us for an advisory opinion.

3 But as Mr. Separovic said, the advisory opinion is exactly that.

4 It is simply a statement of our legal position under the code of conduct,;

5 and before we could -- before the disciplinary council could take any

6 further action, some further request would have to be made to us.

7 Perhaps, for example, a member would make a formal complaint.

8 Now, if that happened, under our constitution, there is quite an

9 elaborate procedure, as Your Honour can imagine, with a certain due

10 process for the member of the bar concerned. And, frankly, it would not

11 be feasible to conclude such a proceeding before the trial date was -- was

12 set, which has been set in this case, arrived. It just wouldn't happen.

13 So from our position in the Displinary Committee or council, Your Honour,

14 the last thing we would want to do would be to disrupt the -- the holding

15 of the trial and make it more difficult for the accused, and so I think

16 that in a practical sense our, hands are -- or somewhat tied here.

17 And when Your Honour said that it was primarily a matter for the

18 individual counsel to decide, I found myself noting in agreement with

19 that, because I think from a practical point of view that is really the

20 situation here, that each of these counsel has to decide what to do.

21 Whether at a later time in certain eventualities, if they should arise

22 during the trial, whether other action might be needed at that point, it

23 probably would come from the Trial Chamber because you'd be faced with a

24 practical difficulty that it had arisen during trial and then that it

25 would have to be solved.

Page 113

1 I will say this if I may, Your Honour, one other thing. As far as

2 the advisory opinion itself is concerned. Your Honours have obviously

3 read it, and you will appreciate for the most part it tracks the

4 observations made by the Appeals Chamber in -- when the matter went up on

5 the joinder question. And we were very scrupulous to -- to observe the

6 findings of the Appeals Chamber, and I think the only addition that we

7 made to what the Appeals Chamber said was -- they were obviously not

8 concerned with the precise terms of the code of conduct.

9 It wasn't before the Appeals Chamber. It was before us. So we

10 had to interpret what Article 14 of the code of conduct meant; and as Your

11 Honour knows, we took the view that it imposed a certain positive duty on

12 counsel. But other than that, I think Your Honour will had find that

13 really everything that we've said was said by the Appeals Chamber on the

14 25th of October. And so to that extent, we do have a finding -- findings

15 in the record already.

16 JUDGE MOLOTO: Okay. Thank you very much, Mr. Murphy.

17 I guess we have heard -- I guess we have heard had the parties,

18 counsel on the matter. We haven't got much time. We still have another

19 major item to deal with. The Chamber cannot make a decision on the point

20 right now -- sorry.

21 Yes, Mr. Separovic. Yes, sir, would you like to say something?

22 MR. SEPAROVIC: [Interpretation] Your Honour, please. Just five

23 minutes of patience for allowing my colleague, Mr. Mikulicic, to speak of

24 the legal nature of the matter involved and jurisprudence. This will cast

25 a completely different light on what the ADC has said. Please do allow us

Page 114

1 that.

2 [Trial Chamber confers]

3 JUDGE MOLOTO: Mr. Separovic, we have very tight time constraints.

4 Do you think it can -- can we get the submissions in writing by counsel in

5 about three days? Is that okay?

6 MR. SEPAROVIC: [Interpretation] Oh, yes, we can do it in writing,

7 but we really don't need more than five minutes now.

8 JUDGE MOLOTO: Yes. But we need the time left for the other

9 issue.

10 MR. SEPAROVIC: [Interpretation] Very well, in writing then.

11 JUDGE MOLOTO: Thank you very much.

12 MR. SEPAROVIC: [Interpretation] Thank you.

13 JUDGE MOLOTO: I am aware that other counsel have sort of been

14 quiet. I guess you are still quiet, Mr. Kehoe, on this matter.

15 MR. KEHOE: Yes, Your Honour.

16 JUDGE MOLOTO: Thank you.

17 Mr. Tieger? Very briefly.

18 MR. TIEGER: Very quickly. The Court did talk about the -- with

19 Mr. Karnavas about the intermediate step. I would just simply note the

20 jurisprudence of the Tribunal makes it incumbent on the Trial Chamber to

21 act in the face of foreseeable risks that threaten to will disrupt the

22 proceedings or threaten its integrity. And I noted, as Mr. Murphy did,

23 that the holding or findings of the Appeals Chamber indeed tracked the

24 language and the findings of the advisory opinion found at page 19 of the

25 Appeals Chamber indicating that they found such conflict to exist.

Page 115

1 JUDGE MOLOTO: Thank you very much, Mr. Tieger.

2 [Trial Chamber confers]

3 JUDGE MOLOTO: May I suggest also to you, Mr. Prodanovic, in case

4 you have anything to say, please to submit it in writing, if you have

5 anything to say still on this issue.

6 MR. PRODANOVIC: [Interpretation] Of course, we shall avail

7 ourselves of that opportunity to express our views in writing. However,

8 since you have put this question in general, it pertains to us as well.

9 How an attorney should act if his disciplinary council establishes that

10 there is potential conflict of interest. That question is very clear to

11 us; then one should leave the said defence if there is agreement on that.

12 However, we think that that opinion is based on unfamiliarity with the

13 facts in the case involved.

14 Oh, please let me. Just a few words, and I'll elaborate on the

15 rest in writing.

16 And, basically, what is important is to see how the potential

17 conflict of interest will be resolved, and that will be -- and that is

18 actually due to unfamiliarity with facts. I would like to indicate the

19 clear distinction that exists from the ruling of the Appeals Chamber from

20 the 25th of October that says there is a possible future conflict of

21 interest, but also what is indicated are the ways that it can be resolved

22 or overcome.

23 Guided by the views of the Trial Chamber, we gave our own

24 statements -- rather, the statements of Mr. Ademi, who is a witness in

25 this case and an accused in a completely different case concerning a

Page 116

1 matter that took place two years before this. So I'm not even going to

2 refer to that now.

3 So there is a difference in terms of how this conflict of interest

4 could be resolved between the disciplinary council and the Appeals

5 Chamber.

6 JUDGE MOLOTO: Mr. Prodanovic, you're going a little longer than I

7 thought you were going to take. Do you mind if I cut you --

8 MR. PRODANOVIC: [Interpretation] All right.

9 JUDGE MOLOTO: If you have any further submissions, may I suggest

10 that you put them in writing.

11 MR. PRODANOVIC: [Interpretation] Very gladly. Thank you.

12 JUDGE MOLOTO: I do suggest to everybody, anybody who still wants

13 to make any further submissions in writing, please do so within the next

14 three days, by Wednesday next week, in other words. I'll give you three

15 working days. Thank you very much. We'll close this matter at that

16 point.

17 The next item on the agenda may or may not -- the rest of the

18 people may or may not want to stay for it, and if they so wish they would

19 be excused; but if they wish to say, they're welcome to stay. This is the

20 matter relating to the compliance with the provisional release conditions.

21 Those of you who would like to be excused are excused.

22 MR. KEHOE: Yes, Your Honour, with all due respect, if we could be

23 excused.

24 JUDGE MOLOTO: You excused Mr. Kehoe and Mr. Misetic. Thank you

25 very much, Mr. Karnavas and Mr. Murphy. The Chamber wants to thank you,

Page 117

1 specifically, Mr. Karnavas and Mr. Murphy for you time.

2 I don't know whether there is any transport arrangement for

3 General Gotovina. But if he does want to leave, he's also excused if

4 there is separate transport for him arranged. I don't know about that

5 pat, but he's not forced to stay.

6 MR. KEHOE: We want to take an opportunity to chat with the

7 general in back if we can. If possible, he can go in the --

8 THE INTERPRETER: The transcript cannot reflect what counsel is

9 saying. No microphone.

10 MR. KEHOE: Your Honour, I just wanted to take the opportunity. I

11 think they probably all will be going back together, but we were just

12 going to take a few minutes to chat with the general before the other

13 hearing ends.

14 JUDGE MOLOTO: I'm not able to -- to say yea or nay on that one.

15 I think you've got to sort it out with the security.

16 MR. KEHOE: Yes, sir.

17 JUDGE MOLOTO: Okay. I just forgot to say, Mr. Markac also may be

18 excused if -- there is an order that has just been filed reinstating

19 General Markac's provisional release. Do you hear that, Mr. Separovic?

20 MR. SEPAROVIC: [Interpretation] I beg your pardon, Your Honour, I

21 didn't hear.

22 JUDGE MOLOTO: I was just saying there is a decision filed

23 reinstating Mr. Markac's provisional release with effect from, I think,

24 tomorrow. Okay? Thank you very much. So he's also --

25 MR. SEPAROVIC: [Interpretation] Thank you.

Page 118

1 JUDGE MOLOTO: -- also allowed to leave if he so wishes. He can

2 wait outside, unless he wants to listen.

3 MR. SEPAROVIC: [Interpretation] Thank you.

4 JUDGE MOLOTO: Shall we just take a short break for the security

5 to escort the people out. We will come back just now. Court adjourned.

6 --- Break taken at 6.46 p.m.

7 --- On resuming at 6.49 p.m.

8 JUDGE MOLOTO: Mr. Prodanovic, the Chamber would like to find out

9 from you whether we should go into private session, or even from anybody

10 else, from the Prosecution. What prompts this question is simply because

11 you made a filing confidentially, and we just want to find out whether we

12 should go into private session to discuss this matter.

13 MR. PRODANOVIC: [Interpretation] It's not necessary.

14 JUDGE MOLOTO: Very well then. We'll then stay in open session,

15 and I'll ask Judge Orie to lead us in the discussions.

16 JUDGE ORIE: Yes. I'd like to put a few questions both to

17 counsel, but also to Mr. Cermak himself. Now, he's quite at a distance,

18 but we'll try to see whether it -- we can work at this distance,

19 Mr. Cermak, or whether we -- I would perhaps later invite you to sit here

20 if necessary.

21 I'd like to clarify a few factual matters, which I learned from

22 the submissions made. You are aware that we are talking about three

23 events: One lunch on the 29th of December; the New Years Eve party, 31st

24 of December; and a happening on the 4th of January of this year, that is a

25 ski race where at least it was suggested that you might have violated the

Page 119

1 conditions of your provisional release.

2 First question. I don't know whether I have to address you,

3 Mr. Cermak, or whether I have to address your counsel. It appears from

4 the submissions that any activity that was business related would be

5 allowed under the conditions of the provisional release. Is that the

6 position of the Defence? And Defence is Defence counsel and accused.

7 MR. PRODANOVIC: [Interpretation] Yes, Your Honour.

8 JUDGE ORIE: Yes. May I then take you -- do you remember what the

9 exact conditions were that were put to Mr. Cermak? Could you tell us

10 where you find that whatever business event there is that Mr. Cermak was

11 allowed to attend. Where do we find that? I mean, could you -- what were

12 the terms? What were the conditions? How were they phrased?

13 MR. PRODANOVIC: [Interpretation] The conditions from the annex to

14 the decision; that was that he could go to work in Zagreb between 7.00

15 a.m. and 7.00 p.m. on workdays.

16 JUDGE ORIE: Yes, on workdays. He could go to his business

17 premises, yes. And would that mean that you could go to a restaurant as

18 well, if you --

19 MR. PRODANOVIC: [Interpretation] That was our interpretation of

20 it. That is a bit of an extensive interpretation. But if I may say so,

21 he hardly ever went to Zagreb because, basically, he moved his business

22 premises already, on the basis of the first decision to Krapinske Toplice

23 where he resides. And the fact that in this case -- oh, all right.

24 JUDGE ORIE: I'm not inviting you at this moment. I would like to

25 put a few questions to you. You said he already moved his business to

Page 120

1 Krapinske Toplice, but nevertheless --

2 MR. PRODANOVIC: [Interpretation] For the most part.

3 JUDGE ORIE: But nevertheless he asked, he requested that he would

4 go to his business in Zagreb. You said there was -- there was hardly any

5 need to do so, is that right?

6 MR. PRODANOVIC: [Interpretation] That's right.

7 JUDGE ORIE: All right.

8 MR. PRODANOVIC: [Interpretation] Well, no, not really. That's not

9 what I said. It's not that there was no need to go, but he went rarely.

10 Could you please have a look at what it was that I actually said.

11 JUDGE ORIE: Yes. Now, he was allowed to leave the confines of

12 his residence in Krapinske Toplice and travel to and from the seat of the

13 company, which is a certain address in Zagreb, Marticeva 65. Is it your

14 interpretation that travelling from the exact address where you live and

15 to the business premises would allow you to go whatever business place in

16 between?

17 MR. PRODANOVIC: [Interpretation] That's what we thought. But,

18 obviously, on the basis of your questions, we thought wrong.

19 JUDGE ORIE: Perhaps, I put a next question perhaps, Mr. Cermak,

20 to you yourself.

21 You attended a birthday lunch on the 29th of -- a lunch at the

22 occasion of a birthday of a business partner in Zagreb. Could you tell us

23 what was the distance between the restaurant and your -- the business

24 premises where you worked?

25 THE ACCUSED CERMAK: [Interpretation] Your Honour, I just stopped

Page 121

1 by at this birthday party of my business partner after leaving work. That

2 was around 2.00. Yes, sorry.

3 JUDGE ORIE: I asked you the distance.

4 THE ACCUSED CERMAK: [Interpretation] The distance is perhaps a

5 thousand metres.

6 JUDGE ORIE: I don't know if you have seen, but a picture was

7 published at that lunch where you are seated at a table. Have you seen

8 that picture?

9 THE ACCUSED CERMAK: [Interpretation] Yes, I've seen that picture.

10 I just came to wish him happy birthday. We had a drink, and my wife and

11 I went home. And all the rest-- sorry.

12 JUDGE ORIE: Perhaps that comes next the question. Someone is

13 standing in that picture and a woman is sitting next to you. Is that

14 your wife or --

15 THE ACCUSED CERMAK: [Interpretation] Yes, that's my wife, yes.

16 She was at the birthday party, at my friend's birthday party.

17 JUDGE ORIE: Yes. Now, my next question would be about the New

18 Year's Eve. In the submissions, it was said that this was outside

19 business hours. Could you tell us from what time to what time until what

20 time did you attend this New Years Eve party?

21 THE ACCUSED CERMAK: [Interpretation] I attended the New Year's Eve

22 party - well, since you're asking me about the time - from 9.00 in the

23 evening until 1.00 a.m.

24 JUDGE ORIE: Yes. Thank you for that answer. Then you said it

25 was outside business hours. What was the day of this New Year's Eve

Page 122

1 party? Was it a working day? Was it a weekend day?

2 THE ACCUSED CERMAK: [Interpretation] New Year was during the

3 weekend.

4 JUDGE ORIE: Yes. Now, the conditions clearly state that you're

5 not allowed, as it says, "but not on Saturdays or Sundays." Could you

6 tell us why you considered it to be acceptable to go to Zagreb outside

7 business hours on a day which was specifically excluded from the privilege

8 given to you?

9 THE ACCUSED CERMAK: [Interpretation] What can I tell you? I've

10 made a mistake, Your Honour. It was lack of caution on my part, but I

11 felt it was necessary to see my friends and business partners. Some of

12 them came from abroad, and knowing that I would be going to The Hague

13 soon, and also it had to do with work.

14 I employ about 600 people by the way, so I am responsible for

15 their existence and my own; and, quite simply, I felt the need to see

16 these people. And it wasn't my intention -- it was not my intention to

17 bring into question the decisions of the Tribunal or the Tribunal itself

18 in any way. With your permission, I would like to say a few words.

19 JUDGE ORIE: I have a few more questions for you, before I give

20 you an opportunity to.

21 The third event was the ski race. Now, I have seen the

22 submissions by counsel and the submissions by the government of Croatia.

23 There are a few things that are slightly different in the one or in the

24 other. Mr. Cermak, one of the things that -- in which there's a slight

25 difference in the submissions made by the government - I don't know

Page 123

1 whether it is a difference - but you say that the slopes on which the

2 events were held are on the Hrvatsko Zagorije side and lie several

3 kilometres from your house; whereas, the government says since the event

4 was in the vicinity of his registered residence, a little more than five

5 kilometres away from his house.

6 Now, I see "a little more than five kilometres," and I see

7 "several kilometres." What is it?

8 THE ACCUSED CERMAK: [Interpretation] More than five kilometres.

9 From the side of Zagorije, on the side closer to my house, to my

10 residence.

11 JUDGE ORIE: How much kilometres would it be by car?

12 THE ACCUSED CERMAK: [Interpretation] To the start of the path in

13 Bistra, it would be around ten, a little over ten kilometres.

14 JUDGE ORIE: I'm asking about the place where you were, Sljeme,

15 as far as I understand, where you, as I understand, picked up your son and

16 your wife. To your house, how much would that be by car?

17 THE ACCUSED CERMAK: [Interpretation] When I went to Zagreb on

18 business, I had agreed with my wife that I should take her and my son and

19 go together with them to the Zagorije house. We often go via Sljeme

20 because it's much less jammed, much less crowded. I just wanted to make

21 it clearer to you and to respond to your question.

22 JUDGE ORIE: Please respond to my questions first. My question

23 was just what is the distance between Sljeme and your house, if you go by

24 car.

25 THE ACCUSED CERMAK: [Interpretation] From Sljeme to my house by

Page 124

1 car, it's around 15 kilometres.

2 JUDGE ORIE: Could I invite you to come sit here next to the ELMO

3 and then we can have a look at it. Could that be put on the ELMO. Yes.

4 Mr. Cermak, I have consulted some information in the public

5 domain, and I found a map, a map with a scale on it, and I reproduced that

6 scale on this map. Is that -- and I tried to draw a line between what is

7 indicated as Sljeme in approximately what I, on the basis of the

8 documents, considered to be the direction of your house; and as the crow

9 flies, could you perhaps, first, at the ELMO point at where your house is?

10 If you take a pen so that we all can see it.

11 THE ACCUSED CERMAK: [Interpretation] Yes, yes. Here.

12 JUDGE ORIE: Yes. As the crow flies, well beyond 20 kilometres on

13 the scale of this map, which would mean that by road, it would certainly

14 take far more, isn't it?

15 THE ACCUSED CERMAK: [Interpretation] Your Honour, when you ask me

16 about the distance of my house from Sljeme, I said 15 kilometres. I

17 didn't mean the top of Sljeme. I meant the edge of those slopes around

18 Sljeme. Because Stubicke Toplice is the exact beginning of the slopes of

19 Sljeme. I went to Sljeme because that's the road to Zagreb. When I

20 reached the slopes of Sljeme from Krapinske Toplice and another Toplice,

21 that's exactly where the slope of Sljeme begins.

22 JUDGE ORIE: Yes, I do understand. Now, could you point for us

23 exactly where the spectators to the ski event were. Where would we find

24 the place where the people would view the event.

25 THE ACCUSED CERMAK: [Interpretation] It is difficult to show this

Page 125

1 on this map because it has no contour lines, but the ski pat of Sljeme

2 faces Zagreb and faces Krapinske Toplice. It's all within my district, my

3 neighbourhood. Whether it's here or here, I'm not sure. But the path

4 faces exactly this side. Stubicke Toplice is where the path begins, and

5 it faces Sljeme. It's not on the Zagreb side. It's on the Zagorije side,

6 and the path is visible from the entire Zagorije.

7 JUDGE ORIE: Now, you said you -- and I see a also slight

8 difference between the submissions made by counsel and the submissions

9 made by the government. Your counsel says you often took this road in

10 order to avoid traffic jams; whereas, the government says you often used

11 this road in order to avoid traffic jams, and that's what you did on that

12 day as well. Is that -- which is the two is the correct?

13 THE ACCUSED CERMAK: [Interpretation] Throughout these two years, I

14 very rarely went to Zagreb because I had moved most of my business to

15 Krapinske Toplice, and it was only occasionally that I used this road.

16 It's one of the options -- one of the possible roads going to Zagreb where

17 I can go to my work.

18 JUDGE ORIE: I have to correct. You said. You said

19 "occasionally." Now was it that day that you wanted to avoid the traffic

20 jam as well, that that's why you took that road?

21 THE ACCUSED CERMAK: [Interpretation] No. It was because my son

22 and wife were skiing. My 10 year old child skis rather seriously. That's

23 the only ski event that actually takes place in Croatia. And for the love

24 of my child, whom I have never been able to take there ever since this

25 story in The Hague started, I did it because I had been promising and

Page 126

1 promising that. The child really adores that sport. I really did not

2 believe, Your Honour, because I have been cooperating with this

3 institution for so many years --

4 JUDGE ORIE: Did you have no opportunity to take him with you in

5 previous years or --

6 THE ACCUSED CERMAK: [Interpretation] In the earlier years, I was

7 unable to take him skiing because this ski complex was just completed two

8 years ago. It's the first time Zagreb and Croatia produced a ski complex

9 that is able to -- to cater to such an event.

10 JUDGE ORIE: Which leaves it possible that you would have taken

11 him there the year before, for example.

12 THE ACCUSED CERMAK: [Interpretation] In the earlier years, he went

13 to ski with an instructor. He had his own instructor, and he skied on

14 that pist [phoen].

15 JUDGE ORIE: I'm talking about the year before that same event.

16 Did you take him then or did you go there at all the year before?

17 THE ACCUSED CERMAK: [Interpretation] For the same event, yes. The

18 same competition we attended last year. We took him to just watch. It

19 was until 5.00 that the first round -- the first run lasted, and right

20 after that we went home. But I did not think of it as a violation because

21 it's within my district, the area where I am allowed to move. I did not

22 leave my district and the city of Zagreb for a centimetre.

23 JUDGE ORIE: Do you remember what the conditions exactly say, that

24 you should remain within the confines of your residence, not the whole of

25 the area, tens of kilometres wide.

Page 127

1 THE ACCUSED CERMAK: [Interpretation] When the police spoke to me

2 about movement, they always speak in terms of the district, because our

3 place of residence is a small place, only 5.000 inhabitants. There is a

4 thermal spa there, and there is no police station in the very place where

5 I reside. The nearest one is in Zabok, and it was always my understanding

6 that I was allowed to move within that area. I really didn't mean to

7 violate the terms.

8 JUDGE ORIE: Mr. Cermak, tell me exactly what happened on that

9 day. You did bring your son and wife to Sljeme, to the area where the

10 event took place?

11 THE ACCUSED CERMAK: [Interpretation] We had agreed to meet up

12 there because she was already there with my son. I went up there and we

13 looked at one race.

14 JUDGE ORIE: How did she get there, by car?

15 THE ACCUSED CERMAK: [Interpretation] She had gone there by car.

16 Transportation had been organised for them, and I followed them knowing

17 that they were already there.

18 JUDGE ORIE: Yes. And did you make any special arrangements for

19 getting there, because -- did you drive with your own car?

20 THE ACCUSED CERMAK: [Interpretation] Since I really know those

21 people well, I had left my car at the parking lot in Bistra. And I got a

22 ride in the limo belonging to some service of the city of Zagreb after the

23 ski pist, and then I joined my wife in her car at Bistra and we used her

24 car to get home. We did not spend up there -- I did not spend there more

25 than one hour.

Page 128

1 JUDGE ORIE: And your wife, you said she went there by her own

2 car. When was this all arranged? Was that --

3 THE ACCUSED CERMAK: [Interpretation] I did not say that my wife

4 had gotten there by car. You just asked me this for the first time. I

5 said that I had come to join my wife from Zagreb and I said we had done

6 all that for the sake of my son, and I believed that I was remaining

7 within the district of Zagorije.

8 JUDGE ORIE: I can't at this moment -- since my computer is not

9 working, I can't check what you exactly said on how your wife got there.

10 MR. TIEGER: Your Honour, it's page 70 --

11 JUDGE ORIE: Yes. The problem is my computer is not -- I don't

12 have the right -- let me see there. Perhaps -- yes, I've got it. Yes.

13 But let's just -- we'll finish soon.

14 So as far as -- you didn't go there by your own car. So in order

15 to fetch them, you left your car somewhere in the -- on the slopes.

16 THE ACCUSED CERMAK: [Interpretation] At the parking lot.

17 JUDGE ORIE: Therefore, for you to fetch them, as presented, is

18 not a correct version of what happened, is it, because as a matter of fact

19 you joined them -- if I -- yes? Mr. Prodanovic.

20 MR. PRODANOVIC: [Interpretation] I'm sorry, Your Honour. With all

21 due respect, I do not see the difference between what we wrote and what

22 you are just asking. He fetched them, except that he was not physically

23 able to go up to the top in his car. He just fetched them, and they all

24 returned together. He had earlier said that he had organised

25 transportation for his wife, that his wife had transportation arranged for

Page 129

1 her.

2 JUDGE ORIE: But when you joined them, did you -- when you joined

3 them did, you use your own car at that time or -- you said you used some

4 transportation that was provided for you.

5 THE ACCUSED CERMAK: [Interpretation] I said I had left my own car

6 at the parking lot, and I got a ride from a service car of the Municipal

7 Assembly up to the skiing complex. I joined my wife and son there. I

8 picked them up. We went together to my car and went home. It's all

9 within the Krapina district, the area where I was told by the police I was

10 allowed to move within.

11 MR. PRODANOVIC: [Interpretation] If I may just note, the parking

12 lot is at the foot of the hill. Since traffic was very heavy, it was

13 forbidden for private cars to go up there. Instead, special

14 transportation was organised to the top, so he drove to the foot of the

15 hill.

16 JUDGE ORIE: Now, I checked what you said. You said she had come

17 which by car. Transportation had been organised for them. So that's

18 where I may have made a mistake. I thought it was by their own car.

19 Now, if transportation was organised for them, what caused you to

20 go there to use -- where you couldn't go any further with your car to use

21 other transportation in order to get to them to get them back to your car?

22 THE ACCUSED CERMAK: [Interpretation] My motivation was my son's

23 love for skiing. He's seriously training, and I really wanted to join

24 them up there and to take them back home afterwards. I did not attend the

25 competition until the end. We looked at two or three races, and after

Page 130

1 that we went home. My car was waiting down below at the parking lot, and

2 we went home.

3 JUDGE ORIE: And that's what you did the year before as well? Is

4 that correctly understood?

5 THE ACCUSED CERMAK: [Interpretation] Last year the situation was

6 similar. I don't remember the details any more. I remember that the two

7 of them went up there several times and went skiing as well and attended

8 the competitions, and I joined them up there very briefly.

9 JUDGE ORIE: I've got a question for you, Madam Slokovic. You

10 have reported to have said to the press that it was no violation of the

11 conditions if Mr. Cermak would bring his child to the ski event. That's a

12 HINA report saying that you gave a telephone conversation -- a telephone

13 interview, in which you said that -- if you want me to read it I will do

14 so.

15 MS. SLOKOVIC: [Interpretation] It's not necessary, Your Honour. I

16 did say on that occasion that Mr. Cermak was not imprisoned in his home.

17 The HINA News Agency asked me whether there were any conditions imposed by

18 the Tribunal that would require Mr. Cermak to stay within his home and in

19 Krapinske Toplice, and I said he was not under house arrest. And it was a

20 telephone interview in which I said the fact that he was taking his son

21 skiing or back or going in working hours for a luncheon or stop somewhere

22 on his way home was something I did not believe to be in violation of the

23 Tribunal's orders.

24 It could be our mistake equally, because I never thought that he

25 was required to stay within the four walls at Marticeva street all the

Page 131

1 time. So if he made a mistake, then it is also due also to our errors in

2 understanding the decision. Our understanding that he was required stay

3 within certain locations, to be accessible to the Tribunal, and not to

4 move without control.

5 All these incidents happened in an atmosphere of holidays with the

6 knowledge that he would soon be going to The Hague. Maybe his attention

7 relaxed a bit, and it is our fault as lawyers that we did not warn him

8 that he was not allowed to leave the premises at Marticeva street where he

9 worked.

10 JUDGE ORIE: The conditions says, "not on Saturday and Sunday."

11 You would interpret that as including to go on Sunday where you want to

12 go?

13 MS. SLOKOVIC: [Interpretation] No, certain not. That was

14 certainly a mistake on Mr. Cermak's part. But when I made that statement,

15 I said that he was not under house arrest because the news reported the

16 terms of his provisional release as if he were under house arrest and not

17 allowed to leave his home.

18 JUDGE ORIE: Yes. But, Ms. Slokovic, aren't the conditions of the

19 provisional release that he should stay within the confinement of his

20 residence? That is his house, isn't it? Not his village, not the area,

21 not the province. It says within the confinement of his residence. That

22 is his house, isn't it?

23 MS. SLOKOVIC: [Interpretation] I don't know. I think there may be

24 a problem there, because we really didn't understand it that way. I am

25 not exaggerating, and I am not being untruthful or evasive. But we

Page 132

1 honestly thought that that meant within his place of residence, which is

2 Krapinske Toplice. The language used by the decision is "place of

3 residence." Maybe the problem lies in the way we understand this term.

4 According to our belief, it was his place of residence, not his house.

5 JUDGE ORIE: Ms. Slokovic, and then unannounced visits to see

6 whether he's present, would they then unannounced go to the whole of the

7 village or the whole of the area, and see whether he is present. That is

8 one of the conditions that was in the first Appeals Chambers decision,

9 which says- and the second one, as well - he should allow unannounced

10 visits to check his presence.

11 Wouldn't that mean that you go to someone's house to see whether

12 he's present, rather than to travel through all of the area to see whether

13 he is at the ski event or in a restaurant or --

14 MS. SLOKOVIC: [Interpretation] In Krapinske Toplice, you cannot

15 travel far. It's a very small place, indeed. And as Mr. Cermak told you,

16 he stayed exclusively at his own home. He has moved part of his business

17 there. He worked from home, and it was on a couple of occasions that he

18 went to Zagreb.

19 THE ACCUSED CERMAK: [Interpretation] And I reported to the police

20 every day.

21 MS. SLOKOVIC: [Interpretation] It was only after he was allowed to

22 officially travel to Zagreb occasionally that he went to Zagreb. Before

23 that, he had organised all of his work from home. It must be a

24 misunderstanding. I really did not understand that he was not allowed to

25 leave his home or that he was required to stay in Zagreb solely at

Page 133

1 Marticeva street.

2 THE ACCUSED CERMAK: [Interpretation] May I?

3 JUDGE ORIE: You would like to say something as well. The

4 interpretation says "witness," but it is Mr. Cermak.

5 THE ACCUSED CERMAK: [Interpretation] Your Honour, I want to say

6 that if I had known I was not allowed to leave my home, you may be certain

7 I never would have done so. I always reported on a daily basis to the

8 police station covering our district.

9 If you allow me just a few more words. I want to emphasise that

10 it was never my intention to question or second-guess the decisions of

11 this Court. Please, I would really ask the Trial Chamber to view my

12 recent actions in the context of my conduct of the past eight years. I

13 was always consistently cooperative with the Tribunal and always had great

14 respect for it. In 1998, I gave my first statement, my first interview to

15 the investigators of the OTP. At that time, I was under attack from both

16 the politicians and the media that I was not allowed to because the ban

17 was still in force --

18 JUDGE ORIE: Mr. Cermak, we are running out of time, and the issue

19 you are raising now is fully dealt with in the submissions by counsel.

20 THE ACCUSED CERMAK: [Interpretation] I just wanted to say

21 something, Your Honours, in my very own words and to add something else,

22 by your leave. If you don't let me, then -- I mean, really, I honourably

23 treated this court from day one.

24 MR. PRODANOVIC: [Interpretation] Your Honour, just one more

25 thing. Since Mr. Cermak said the went to Zabok, which was of course in

Page 134

1 accordance with the decision. Zabok is ten kilometres away from his

2 house, and that is where the police station is.

3 THE ACCUSED CERMAK: [Interpretation] Fifteen kilometres.

4 MR. PRODANOVIC: [Interpretation] Twelve. It's a very small

5 place. Once you're out; you're out of it. You get out of the building,

6 and you're out of the place itself. And all the relevant institutions are

7 not there and not all the relevant institutions are there and, therefore,

8 it doesn't function properly. It is really my responsibility, because it

9 wasn't mine understanding that he had to be within the confines of four

10 walls.

11 JUDGE ORIE: Yes. I don't think Mr. Cermak is blamed at this

12 moment for reporting in Zabok when there was any need to do so.

13 We're running out of time. We're already half an hour late and --

14 MR. PRODANOVIC: [Interpretation] No. I'm just trying to

15 illustrate the situation. It's a very small place. When you get out, you

16 immediately have to get out of it a bit.

17 [Trial Chamber confers]

18 THE ACCUSED CERMAK: [Interpretation] Your Honour, may I just have

19 two minutes to say something else, as a human being? Just something else?

20 JUDGE MOLOTO: You may.

21 THE ACCUSED CERMAK: [Interpretation] I just wanted to explain to

22 you that over years eight years from the very outset, I cooperated with

23 this Court, that I was under attack, that I shouldn't be doing that, and

24 that I was attacked by the media and by the sphere of politics. And I had

25 my first contacts and interviews with The Hague Tribunal in 1998, and then

Page 135

1 after that I gave three other statements. I voluntarily surrendered to

2 the Trial Chamber as soon as the indictment was issued.

3 So I did everything in accordance with the law of the Republic of

4 Croatia on The Hague Tribunal. I also gave three other statements to the

5 investigators of the OTP. I voluntarily surrendered to the Tribunal once

6 the indictment was issued. From 2004, when I was provisionally released,

7 I fully abided by all the conditions imposed on me by the Court, and there

8 are regular reports of the Croatian police and government to corroborate

9 that. With my behaviour, I showed that I had full respect for the

10 institution of the Tribunal.

11 Your Honours, I truly believe that this isolated incident cannot

12 be considered as contempt on my part, but simply an action taken in an

13 exceptional situation in New Year's and also the fact that I took my child

14 to a skiing event within my district. Once again, Your Honours, I'm

15 saying that I am sorry by that, and that I will continue to abide by all

16 the instructions of the Court. Please forgive me as a human being.

17 Had I had known that I was supposed to be in my home, I would have

18 been in my home. I -- it would really be a tragedy, as a person who from

19 Croatia in the former Yugoslavia contacted and cooperated with the

20 Tribunal in such a way. If I were to be treated as a person who stood in

21 contempt of court, I mean really that would be so wrong. It was really my

22 mistake. I admit that, and I am so sorry.

23 JUDGE MOLOTO: Thank you, Mr. Cermak.

24 May I just please ask for the indulgence of the interpreters, and

25 everybody. We're going to ask for just two or three minutes and then

Page 136

1 we'll come back. Court adjourned.

2 --- Recess taken at 7.33 p.m.

3 --- On resuming at 7.36 p.m.

4 JUDGE MOLOTO: Thank you. The Trial Chamber is not able to reach

5 a final decision on this issue today. As a result, the suspension of the

6 provisional release order stays in place, and the Trial Chamber will meet

7 or reconvene the Chamber again next week to reconsider the matter. In the

8 meantime, the accused will stay in the United Nations Detection Unit until

9 the matter is formally decided in the new week.

10 Court adjourned.

11 --- Whereupon the Status Conference adjourned

12 at 7.39 p.m.