1 Thursday, 12 February 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.16 p.m.
5 JUDGE ORIE: Good afternoon.
6 Madam Registrar, would you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honours. This is case
8 number IT-06-90-T, The Prosecutor versus Ante Gotovina, et al.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 Before we proceed the Chamber would like to deal with a few
11 procedural matters first, and, Ms. Higgins, the Chamber is aware of your
12 wish to address the Chamber in relation to the documentary film. But we
13 will first deal with a few other matters.
14 The first one I just put it on the record, not more, not less,
15 that the Chamber is aware that there is quite an intense exchange of
16 views on documents to be tendered or not to be tendered through (redacted)
17 (redacted). The Chamber sees that the situation changes approximately
18 every half-hour, if not every 15 minutes.
19 Just for the parties to be aware that the Chamber, not without
20 some concern, is not addressing the matter at this moment but is aware of
21 what happens.
22 Mr. Misetic.
23 MR. MISETIC: Your Honour, if we could go into private session
24 for a minute.
25 JUDGE ORIE: We turn into private session.
1 [Private session]
24 [Open session]
25 THE REGISTRAR: Your Honours, we're back in open session.
1 JUDGE ORIE: Thank you, Madam Registrar.
2 The Chamber has granted a request to make further submissions in
3 relation to the production of documents obtained by the Defence. The
4 Chamber also was copied on an e-mail exchange, in which you, Mr. Misetic,
5 invite the Prosecution to find a factual basis for their position, and
6 you apparently were not very satisfied with the response which said
7 something of the kind as litigation will be in court.
8 Is there any practical way to resolve it because, of course, the
9 Chamber would not be amused, Mr. Waespi, if, for a lack of knowledge of
10 the Defence, we would lose further time because they couldn't prepare for
11 a response.
12 At the same time, there may be legitimate reasons to proceed as
13 the Prosecution does. Now, of course, that should be balanced very
14 carefully. Of course, the Chamber is not at this moment aware of any
15 very specific reason why the basis for your position could not be shared
16 with the Defence; the answer, at least, says we'll litigate in Court.
17 That is not much of an explanation.
18 Not to say that you are under an obligation to explain that you
19 do what one often does, that is, to litigate in court. But at the same
20 time, if any solution could be found, the Chamber, again, would not be
21 amused if we would lose additional time if not for very good reasons this
22 information was kept from the Defence.
23 MR. WAESPI: Thank you, Mr. President.
24 I'll raise it with Mr. Tieger, who obviously was dealing with
25 Mr. Misetic on this issue.
1 I think one of the main issues was that the -- it became kind of
2 unsatisfactory, the exchange of e-mails, and that kind of triggered the
3 point from our view to have it -- make transparent and in court. But
4 I'll talk to Mr. Tieger.
5 JUDGE ORIE: Yes. Sometimes when reading some of the e-mail
6 exchanges, I wished that, apart from having studied law, to have studied
7 psychology as well.
8 Then having dealt with that matter, we still owe the Prosecution
9 a decision on a request for Prosecution motion to hear Witness 82's
10 evidence via video-conference link, and I'll deliver the decision. I
11 think we have given the decision, but the reasons are now delivered.
12 On the 3rd of February, 2009, the Prosecution filed a motion
13 requesting that Witness 82's evidence be presented via video-conference
14 link on the 16th of February. The Prosecution argued that the witness's
15 medical condition prevents him from travelling to The Hague within the
16 time left for the presentation of the Prosecution's case.
17 The motion was supplemented by a medical report on the witness's
18 health situation and a declaration from a Prosecution investigator,
19 describing the investigator's recent telephone conversation with the
21 On the 4th of February, the Gotovina Defence submitted that the
22 witness's condition was not such as to render him unable to travel to
23 The Hague
24 submissions can be found at transcript pages 15712 and 15713.
25 On the 5th of February, the Chamber informally communicated to
1 the parties that it decided to deny the motion, without prejudice.
2 According to Rule 81 bis of the Tribunal's Rules of Procedure and
3 Evidence, a chamber may order that proceedings be conducted by way of
4 video-conference link if this is consistent with the interests of
5 justice. As previously set out by this Chamber, the standard of Rule
6 81 bis is met if a witness is unable to come to The Hague if the
7 testimony is sufficiently important to make it unfair to the requesting
8 party to proceed without it and if the accused is not prejudiced in his
9 or her right to confront the witness.
10 The Chamber found that the information contained in the medical
11 report of the 7th of January, 2009, does not depict the witness's health
12 situation as sufficiently serious as to prevent him from travelling to
13 The Hague
14 that the witness's condition is not of a long duration, and moreover, the
15 symptoms described in the report, the prescribed treatment, and the
16 indication that the witness has responded well to therapy support this
18 In addition, the declaration of the Prosecution investigator who
19 spoke to the witness on the telephone on the 2nd of February, 2009, in
20 which the witness is described as having a high fever and coughing
21 heavily is insufficient to establish that the witness is unable to travel
22 to The Hague
23 -- the information in it is not verified. It lacks specificity, and it
24 does not clarify the cause of the witness's ailments. It's not clear to
25 the Chamber whether the symptoms explained in the investigator's
1 declaration are in any way related to those in the medical report.
2 The Chamber was therefore not persuaded that the witness was
3 unable to come to the Tribunal and found that the standard of Rule 81 bis
4 was not met.
5 Having reached this conclusion, the Chamber did not consider the
6 remaining two elements. For these reasons, the Chamber decided to deny
7 the motion without prejudice, and this concludes the Chamber's reasons on
8 the matter.
9 Another decision to be delivered by the Chamber is a decision on
10 the admission of an expert report and associated exhibits of Witness
11 Harry Konings.
12 This is a decision on the admission of the expert report of Harry
13 Konings, marked for identification as P1259; his addendum to that report,
14 marked for identification as P1260; the Prosecution's terms of reference
15 for the addendum, marked for identification as P1261; and a corrigendum
16 to the expert report and addendum, marked for identification as P1262.
17 On the 18th of December, 2008, the Chamber filed a decision on
18 the expert report and addendum, in which it dealt with the Defence`s
19 objections to admission into evidence, found that it was in the interests
20 of justice to consider the addendum for admission and deferred a final
21 decision on the admission of the expert report and addendum until the
22 testimony of Harry Konings.
23 The witness testified between the 13th and the 20th of January,
24 2009, and on the last day, after the completion of the testimony, the
25 Chamber invited the parties to make submissions on admission of the
1 expert report and associated exhibits while focussing on the witness's
2 qualification as an expert. This invitation and the parties' submissions
3 can be found at transcript pages 14819 through 14832.
4 The expert status of the witness as such was not disputed,
5 although the parties disagreed on the precise scope of his expertise.
6 The Chamber finds that the Prosecution has established during the
7 testimony of Harry Konings his expertise in the use of artillery in
8 military operations. It finds further that the expert report and
9 addendum fall within this area of expertise. Having read the reports,
10 and considered the testimony of Harry Konings, the Chamber is also
11 satisfied that the reports meet the requirements for admission, set out
12 in Rule 89 (C).
13 The Gotovina Defence opposed admission into evidence, arguing
14 that Konings had testified that at the time the Prosecution asked him to
15 prepare the expert report, the Prosecution also announced to him that it
16 would later request an addendum. The Prosecution stated that at that
17 time, it had no intention to later seek an addendum and had not, to its
18 recollection, announced any addendum. The Gotovina Defence argued that
19 it had suffered prejudice from the late filing of the addendum by being
20 deprived of the opportunity to put it to witnesses who had testified
21 prior to that time.
22 The latter argument is similar to one which the Chamber already
23 dealt with in its decision of the 18th of December, 2008. The Chamber
24 will address the new fact in the testimony of Konings at transcript pages
25 14493 through 14494, in which he indicated that the Prosecution had
1 announced to him in advance that it would request an addendum. The
2 Chamber may reconsider its previous decision if justified by particular
3 circumstances in order to avoid an injustice. A new fact may constitute
4 such a particular circumstance.
5 Even assuming that the witness's recollection on the matter is
6 accurate, the Chamber finds that a new fact revealed in his testimony
7 does not create a significant change in the factual situation that was
8 before the Chamber when it issued its decision on the 18th of December,
10 The Defence's argument that the Prosecution had intended all
11 along to file an addendum is pertinent for the question of whether
12 there's good cause for late filing rather than for what burden it places
13 on the Defence. In its previous decision, the Chamber already found that
14 the Prosecution had not shown good cause for its late filing of the
15 addendum. The Chamber, weighing, also, other factors, nonetheless
16 decided to consider it for admission. Consequently, the Chamber finds
17 that there are no particular circumstances warranting a re-consideration
18 of its previous decision.
19 Pursuant to these findings and those made in its decision of the
20 18th of December, 2008, the Chamber therefore admits into evidence P1259,
21 P1260, P1261, and P1262. The Chamber will, in due course and in
22 consideration of all the evidence before it, determine what weight, if
23 any, to attribute to the evidence of Konings, including his opinions and
24 conclusions drawn on the basis of documents and other information
25 submitted to him by the parties.
1 And this concludes the Chamber's decision on the admission of the
2 expert report and associated exhibits of Witness Konings.
3 The next item, Mr. Waespi, is submissions and a decision on
4 protective measures for Official Notes. No real application for
5 protective measures have been made, but the Chamber is aware of the
6 existence of an e-mail by Ms. Mahindaratne in which she announces that
7 the Prosecution would like to have protective measures for one of the
8 Official Notes where a -- someone who appeared once on the witness list
9 of the OTP is mentioned.
10 I couldn't say at this moment that it is a very elaborate
11 reasoning, and the Chamber wonders, also having reviewed this Official
12 Note, what exactly is said about this person, whether the Prosecution
13 still wants to pursue this matter.
14 MR. WAESPI: Thank you, Mr. President.
15 I need to check with Ms. Mahindaratne. Perhaps during the MFI
16 session on Monday we could get back to you, if that's convenient.
17 JUDGE ORIE: Yes. We'll then hear from Ms. Mahindaratne. Where
18 the application is expected to be based mainly on expression of concerns
19 without any further specification that the person mentioned, one was a
20 witness, at least on the list, and that the person has considered to
21 apply for protective measures is not, at this moment, in this form, not a
22 very strong announcement of an application to be made.
23 So if Ms. Mahindaratne in reviewing the matter would consider not
24 to pursue it, then, of course, we'd like to know, even before Monday.
25 For the next item, out of an abundance of caution, I'd like to go
1 into private session.
2 [Private session]
11 Page 15808 redacted. Private session.
18 [Open session]
19 THE REGISTRAR: Your Honours, we're back in open session.
20 JUDGE ORIE: Thank you, Madam Registrar.
21 I would briefly address the Turkalj translation and transcription
23 After the Prosecution has reviewed the Cermak Defence's schedule
24 in relation to the Turkalj transcripts and translations, the Chamber
25 wishes to know whether the parties have come to some kind of an agreement
1 on the matter. If that is the case, what has been done to have now the
2 accurate transcripts and translations uploaded so that the right versions
3 are in evidence. If there's not some kind of agreement, what keeps the
4 parties divided at this moment, and can the Chamber be of any assistance
5 to resolve the matter to the extent that the issues are, from what we
6 see, of a purely technical and linguistic nature?
7 Mr. Kay, I see you're on your feet, but I'd like to finish
8 because Turkalj is not only Cermak.
9 The Chamber reminds the parties that an agreement between the
10 parties on the significance and the importance of the corrections to be
11 made is not of concern to the Chamber at this moment. What matters to
12 the Chamber now is that it receives accurate versions of the said
13 documents in the languages used.
14 Having said that, the Chamber's understanding is that the
15 Prosecution has not yet communicated its comments on the Markac Defence
16 schedule. Once that is done, the Chamber would like to be informed and
17 urges the parties to follow the same procedure as with the schedule for
18 the Cermak Defence.
19 Mr. Kay, is there anything you'd like to --
20 MR. KAY: Our work was done in very good time. It was sent to
21 the Prosecution. They responded in an adequate time. We regretted that
22 comments were put on the schedule which was circulated to everyone by
23 Prosecution counsel. We did not think that that was appropriate, and it
24 was not our intention to enter into any exchange or debate on
25 significance. We weren't about point-scoring. We were dealing with the
1 quality of the evidence which we believe, Your Honour, has rightly
2 identified as being the issue; and as I understand it, there can be no
3 basis of opposition because the parties agree that amendments are
4 necessary to the fact that the correct translations are now uploaded into
5 the system so far as the Cermak revisions are concerned.
6 The matter of commenting on significance was not something
7 started by us, but we do feel at times, Your Honour, that we have to
8 respond because if we take this kind of behaviour sitting down all the
9 time, it is -- it's extremely difficult for us, and we feel that we lose
10 an advantage within the system.
11 JUDGE ORIE: Yes. I've put this significance and importance
12 issue in my statement at this moment to make very clear, first of all,
13 that we've seen it; whether we wish to see it is another matter, but we
14 have seen it, and also what our position is in relation to that is, that
15 they are not discussing at this moment significance or importance of
16 changes but just to get the right versions.
17 And I do understand that you sometimes feel that you have to
18 respond to certain matters. I hope that the parties do understand that
19 the Chamber, whatever it sees always wants to achieve full transparency
20 on what has seen, puts it on the record. Sometimes -- a little smile is
21 on my face if one writes that this should not be sent to the Chamber.
22 Sometimes it's a feeling of understanding that it's -- that might have
23 been better. So the parties are urged not to send anything to the
24 Chamber staff which is not necessarily to be brought to the attention of
25 the Chamber, because the system is very practical matters will not be put
1 on the record. Matters which are more on than just practicalities, and
2 practicalities, I understand, things like, Is Mr. A available on that day
3 or not, but really the practical things, matters that are not just of a
4 practical nature and a bit more will be mentioned so that they appear on
5 the record of these proceedings and matters of real significance and
6 importance are to be filed, even if they were exchanged initially by
7 e-mail. That's the system the Chamber has adopted and which I repeat.
8 Now let me just ... is there -- uploading has taken place already
9 and is there any --
10 MR. KAY: Not taken place. We're ready, Your Honour, but we're
11 waiting for this final confirmation, and the way it was going to be done
12 was by of a filing so that it was done through the official system, and
13 then the -- rather like we've done with agreed stipulations in the past.
14 We adopted the same approach.
15 JUDGE ORIE: Yes.
16 MR. KAY: We're waiting for the Markac resolution, as we felt
17 that Your Honours would want it all done together.
18 JUDGE ORIE: Well, we noticed that Markac was seven to ten days
19 behind, and we'd like to have matters settled, whether together or not.
20 MR. KAY: Yes. We can file ours if Your Honour wants that.
21 JUDGE ORIE: Well, it depends. If the Markac issue would be
22 resolved in one or two days, then, of course, it could be done together.
23 If not, then you're invited to file already.
24 MR. KAY: Much obliged, Your Honour.
25 JUDGE ORIE: Mr. Waespi and Mr. Kuzmanovic, because I -- well,
1 Mr. Kuzmanovic was dealing with a matter. That's --
2 MR. MIKULICIC: Yes, he was dealing with a matter, Your Honour,
3 and is he not presently here. He will be here next week.
4 JUDGE ORIE: Yes. Is there any way of later today informing the
5 Chamber on what we could expect as far as the Markac/Turkalj issue is
7 MR. MIKULICIC: Your Honour, I suppose we will have, Mr. Waespi
8 and myself, a little meeting, and after that we could inform the Chamber.
9 JUDGE ORIE: Thank you.
10 Then, finally, I'd like to make a correction of the transcript in
11 relation to the testimony of Witness Andries Dreyer.
12 This is a correction of a reference on the transcript regarding
13 the testimony of Witness Andries Dreyer. During cross-examination of
14 Witness Andries Dreyer, counsel for the Gotovina Defence, Mr. Kehoe,
15 referred to photographs allegedly contained in page 3 of Exhibit P69.
16 The reference can be found on transcript page 1825.
17 However, Defence counsel informed the Chamber in an informal
18 communication that this reference correctly should refer to P700. The
19 reference to the photographs during cross-examination ignored that only
20 two photographs contained in P69 had been admitted into evidence;
21 whereas, the other photographs were still part of Exhibit P69 as
22 originally uploaded in e-court.
23 The photographs to which reference was made now can be found on
24 page 4 of P700, and this concludes the Chamber's correction of a
25 reference on the transcript.
1 Reference was made, to which was at the time still uploaded but
2 not admitted and now appears somewhere else.
3 Mr. Waespi.
4 MR. WAESPI: Yes, I can inform you that in relation to these
5 protective measures for that Official Note you mentioned, page 9, we
6 don't have any more concerns, so it can be admitted publicly.
7 JUDGE ORIE: Yes. I think it was admitted already, and the
8 parties were just invited to express any concerns for protective
9 measures. Now it is established that neither Defence nor Prosecution
10 raises any issue of granting protective measures.
11 And -- Mr. Misetic.
12 MR. MISETIC: Mr. President, may we go into private session one
13 minute, please.
14 JUDGE ORIE: Yes. We turn into private session.
15 [Private session]
6 [Open session]
7 THE REGISTRAR: Your Honours, we're back in open session.
8 JUDGE ORIE: Ms. Higgins, you asked for a couple of minutes to
9 make submissions in relation to the document refilm from what I
11 MS. HIGGINS: Your Honour, just for the record my request was to
12 address very briefly the Prosecution's reply on the 28th of January
13 concerning both the report and the document refilm. It's my intention,
14 also, at the end, with Your Honours' leave, to show Your Honours a very
15 short clip portion to demonstrate what we say is the unreliability
16 concerning the latter, the film.
17 JUDGE ORIE: Any objections against -- apart from, of course, not
18 from making submissions because that request is granted but also to play
19 part of a very short clip portion.
20 MS. FROLICH: No objections, Mr. President.
21 JUDGE ORIE: Please proceed, Ms. Higgins.
22 MS. HIGGINS: I'm grateful, Your Honour.
23 As Your Honour has received three filings in this matter, it is
24 clear, I'm sure, to Your Honours by now that it's the Defence position
25 that the heart of the submission that we make in respect of both the
1 report and the film concerns its unreliability, which we say goes
2 directly to the admissibility point and not the weight as has been
3 submitted by the Prosecution. Support for this principle can be found in
4 paragraph 9 of the Milutinovic decision of the 1st of September, 2006
5 which refers there to the fact that although certain earlier decisions of
6 the Tribunal held that reliability is not a precondition for the
7 admission of evidence, the text of the rules and more recent appellate
8 jurisprudence makes it clear that reliability is relevant to the
9 admissibility of the evidence, particularly where that evidence concerns
10 an out-of-court written statement.
11 Your Honour, we also rely upon not only that decision but the
12 second Milutinovic decision of the 13th of September, 2006, which we've
13 cited in the motion, and we submit that those decisions are on all fours
14 with the challenge that faces this Trial Chamber in determining the
15 unreliability/admissibility aspect of the matters before you.
16 In paragraph 6, to address reply specifically, the Milutinovic
17 approach to admissibility has been described by the Prosecution as the
18 exception rather than the rule. I would stress, however, Your Honour,
19 that it has come to my attention within the last few days that the
20 decision is not one which is only relied upon by the Cermak Defence
21 before this institution; it's also one which stretches to be pleaded
22 before the special Court of Sierra Leone in the Charles Taylor case where
23 a motion is pending before that Court submitted on the 5th January, 2009,
24 relying on the Milutinovic approach concerning the admissibility of
25 similar NGO reports.
1 To deal briefly with several of the points that have been raised,
2 I would draw Your Honours' attention to paragraph 3 of the Prosecution's
3 reply where, in my submission, a narrow selection of factors to be taken
4 into account when dealing with admissibility has been put forward. Six
5 of the key factors, again, rooted in Milutinovic, are not set out, and
6 Your Honour has these in the Defence motion that has been filed before
7 the Court. I don't intend to repeat them here, as they are clearly set
9 Paragraph 7 of the Prosecution's reply refers to the fact that
10 this Trial Chamber has admitted documents previously, concerning first-
11 and second-hand hearsay, and the reference there is to the admission of
12 documents tendered through the UNCIVPOL witness, Mr. Jan Elleby.
13 Your Honour, in my submission, the difference here is that it's
14 not just a matter of first- or second-hand hearsay, but you are
15 confronted by ten pages as set out in the Defence motion of live
16 indicators of unreliability. Not only are the interviewers not named,
17 but in many instances, the interviewees are listed by initial only, and
18 in many cases, as I have sought to demonstrate through the filing of the
19 motion, there are no footnotes at all.
20 The Prosecution seeks to plead before you in paragraph 8 of the
21 reply that in fact the report itself is reliable. In seeking to make
22 that submission, they rely on the fact that the HHO, the Helsinki
23 Committee, describes itself as having a reputation of protection and
24 promotion of human rights and recording human rights abuses in Croatia
25 In my submission, that does not, however, answer the question for this
1 Trial Chamber, which is whether or not this individual report is
2 sufficiently reliable for the purposes of criminal proceedings given the
3 way in which it can be seen it has been prepared and the methodology
5 The point of this report is clearly to highlight human rights
6 abuses. The aim of the report was not, I would submit, to create an
7 objective and factual account of what actually occurred, neither can it
8 be replied upon for that purpose.
9 The Prosecution seeks to persuade you further that, in fact, not
10 one element of the report has been successfully publicly disputed.
11 Again, in my submission, Your Honour, it does not, however, answer the
12 question of whether in fact the methods used to prepare this report have
13 ever previously been scrutinized before any criminal court in this
15 You are referred to the fact that the report contains detailed
16 footnotes. It does not, however, address the concerns that I have
17 mentioned concerning a plethora of examples when no such substantive
18 referencing is provided. You are given, what is said, corroborative
19 evidence, but if on further inspection it would be my submission that
20 that corroborative evidence is in many instances generic and partial. In
21 confidential Appendix B of the reply, the Prosecution seeks to
22 corroborate events which are not even dated in the Storm report.
23 Paragraph 9, the Prosecution seeks to submit that the indicia of
24 reliability which have been cited by the Defence are either erroneous or
25 go to the weight of the report, and to address just two points in that
1 respect, at point B of the Prosecution's reply, if Your Honour inspects
2 that paragraph carefully, you will see that in fact those aspects
3 concerning the opportunity to cross-examine an editor and it being
4 insufficient cannot replace the test of whether or not the document is
5 reliable. Those points, again, go back to the Milutinovic dicta
6 concerning admissibility if not weight.
7 Your Honour, reference has also been made to the fact that no
8 examples were given by the Defence in support of the contention that it's
9 often not clear whether a passage of the report is intended to refer to
10 what an individual saw or what an individual was told. With such a
11 weighty tone and having concentrated efforts on other areas, I'd like,
12 however, to direct Your Honours to two examples, one which can be found
13 on page 43 upload in e-court - I'm not going to ask that it be put on the
14 screen now - and another at page 47, English, e-court.
15 Your Honour, in respect of the film, if I can address that
16 briefly, it's my submission that the Prosecution observations within the
17 reply do not address or remedy the essential problem which has been
18 brought to Your Honours' attentions. Namely, that the film lasts for 54
19 minutes and includes comments from 34 named individuals, some of which
20 remain unnamed. It is claimed that the whole answers of the individuals
21 are included in the film. It's my submission that without the entirety
22 of the footage that made the film, that claim cannot be substantiated.
23 JUDGE ORIE: If you just allow me to interrupt for one second.
24 The examples you referred to earlier, not to be shown on the screen, are
25 these examples we find in -- because I don't have the numbers all on the
1 top of my head, the numbers which you have -- the examples you have
2 already given in your submissions?
3 MS. HIGGINS: No, Your Honour. The criticism that was brought
4 was that we had not cited any examples in the Defence motion, so I have
5 chosen to --
6 JUDGE ORIE: No. I -- yes. So then ...
7 MS. HIGGINS: If it assists by my providing the actual page
8 number for Your Honours on the hard copy, I can do that.
9 JUDGE ORIE: Yes, The page numbers on the hard copy because --
10 well, first of all, I noticed that the table of content gives page
11 numbering which is not consistent with what we find on the document
13 MS. HIGGINS: Yes.
14 JUDGE ORIE: So if you would have the hard copy numbers for us so
15 that -- because they appear also in e-court.
16 MS. HIGGINS: Your Honours, one of the examples I've cited can be
17 found at page 71 [sic], and it's in the middle of the page concerning
18 killings in Mokro Polje. It's in fact the fourth paragraph on that page.
19 JUDGE ORIE: Let me just have a look. 71, that's the page which
20 starts with -- top left, I find graveyards, started: "He replied that
21 the MKCK participated ..."
22 Is that --
23 MS. HIGGINS: No, it's page 41, Your Honour.
24 JUDGE ORIE: 41. Then it's ...
25 MS. HIGGINS: The page that begins "Stake skaric ..." [phoen]
1 JUDGE ORIE: No, I was -- I heard and I see in the transcript 71,
2 but that is then, perhaps, a mistake by whomever. Yes. And you
3 specifically wanted to draw our attention to --
4 MS. HIGGINS: One example, Your Honour, that begins, the fourth
5 paragraph on that page: "In the period since August the 6th, 1995
6 That paragraph is reference to one individual, a witness referred
7 to as BA, and, in my submission, it is unclear from the context whether
8 or not the witness or the individual saw the killings and the
9 perpetrators or whether he or she was told about them afterwards.
10 JUDGE ORIE: Yes. And the other example was?
11 MS. HIGGINS: The other example is hard copy page 45.
12 JUDGE ORIE: Yes, which I've got in front of me.
13 MS. HIGGINS: Your Honours, footnotes 32 and 33, the first
14 paragraph and the third paragraph, this is in relation to killings in
15 Zagrovec, they are supported by two individuals named by initials only,
16 and the question which is perhaps is unclear is whether or not in that
17 first paragraph, RD, as he or she is identified, actually saw the events
18 or was told about them, and if so, by whom.
19 JUDGE ORIE: Thank you for that.
20 MS. HIGGINS: I stress that these are examples only in relation
21 to this category.
22 JUDGE ORIE: I do understand that. This kind of information is
23 not only missing only here, you would say. Yes.
24 MS. HIGGINS: Exactly.
25 JUDGE ORIE: Please proceed.
1 MS. HIGGINS: Your Honour, I was dealing with the film, if I may
2 return to that portion.
3 In my submission, the point that has been made by the Prosecution
4 that portions had been exhibited previously through General Forand,
5 Roberts, and Flynn does not assist the Chamber with whether or not it's
6 reliable in terms of the other 30-odd individuals cited.
7 Your Honours are aware of the point that has been raised in
8 respect of Witness 70, who is no longer a witness, and will have noted
9 the Prosecution's willingness to stipulate that the comments made by
10 Witness 70 should not be considered for the truth of their contents.
11 In my submission, Your Honour, the Prosecution has had not only
12 the video itself in its current format since well before trial but also
13 knew that Mr. Puhovski would be coming here to testify and could have
14 provided a proper cut piece by providing, also, the additional sections
15 of the film so that we could see them in context, and not seek to rely on
16 what can only be described as a political montage of, as I have stated,
17 over 34 -- I think 34 in total named individuals and some unnamed. It's
18 not simply that it should not be relied upon. It shouldn't be there, in
19 our submission, in the first place.
20 With Your Honour's leave, I would like to show just piece of the
21 film itself to illustrate my comments and observations on the film.
22 If could I ask that for video section to be prepared so that it's
23 ready for play. I see that it's ready.
24 Could I just before it starts explain to Your Honours that the
25 video compares footage of an original exhibit in this case, which is a
2 "Storm Over Krajina" documentary. The first part of D146 is played, then
3 the documentary portion, and then a split-screen comparison. All should
4 become clear as the piece is played.
5 Thank you, Your Honour.
6 JUDGE ORIE: Yes. So we will see all that -- yes.
7 It will be played in e-court, and have there -- have transcripts
8 been made available to the booth?
9 MS. HIGGINS: I'm told that we're not intending to exhibit this,
10 and the text itself is on the screen as it appears at least for part of
11 it. The purpose for which we rely on it is not for the text but actually
12 for the illustration of the footage shown over the text.
13 JUDGE ORIE: Yes. But, at the same time, for a full record ...
14 Ms. Frolich.
15 MS. FROLICH: Mr. President, just a couple of brief comments. I
16 would have to see the footage first in order to comment, but we have
17 provided transcripts to the interpreters if that is of any assistance.
18 We would like to have, of course, a full record, if possible.
19 JUDGE ORIE: Even if something is not in evidence, Ms. Higgins,
20 nevertheless, the record of the proceedings should be complete.
21 MS. HIGGINS: Your Honour, can I therefore give an undertaking
22 that we will provide a transcript of what is seen. It is really is for
23 the purpose of seeing the images. D146 is already in evidence, which is
24 the major portion of this, and, of course, the other part, if Your
25 Honours disagree with my submission, a transcript exists for "Storm Over
2 to do so.
3 JUDGE ORIE: I think that it was even part of the -- I remember
4 that I've seen a transcript of -- although not fully read.
5 Ms. Frolich, any objection against the way of proceeding as
6 suggested by Ms. Higgins?
7 MS. FROLICH: No objection, Your Honour.
8 JUDGE ORIE: Then we will proceed and, of course, the issue is
9 how to get finally a French text because we are an institution with two
10 official languages --
11 MS. HIGGINS: Yes.
12 JUDGE ORIE: -- but we'll resolve that one way or another.
13 MS. HIGGINS: I'm grateful.
14 JUDGE ORIE: Please proceed.
15 [Videotape played]
16 THE INTERPRETER: Your Honours, respectfully from the English
17 booth, without the transcript reference, we need to keep up with the
18 subtitles, which will make things impossible for the French booth.
19 [Videotape played]
20 MS. HIGGINS: Your Honour, very briefly, we submit that this
21 demonstrates the unreliability of portions of this video that is sought
22 to be admitted, and we would seek a ruling on the admissibility of both
23 the report and the video at this stage of the proceedings. Your Honours
24 will have noted that the overlayed imagery was neither undated -- sorry,
25 was undated and unreferenced as to its location.
1 Your Honour, those conclude my submissions.
2 JUDGE ORIE: Thank you, Ms. Higgins.
3 Ms. Frolich.
4 MS. FROLICH: If I may be allowed just to address a couple of
5 very brief points because I believe the Prosecution's position has been
6 made very clear in the Prosecution reply, Mr. President.
7 First of all --
8 JUDGE ORIE: You have just as much time as Ms. Higgins has taken.
9 But before we continue, is there anything the other Defence teams would
10 like to add?
11 I see there is no need for that.
12 So Ms. Frolich.
13 MS. FROLICH: Thank you for your indulgence, Mr. President. I
14 will still endeavour to be brief.
15 Ms. Higgins has addressed, first and foremost, the point --
16 really, two points that there is a difference -- that indicia of
17 reliability speak to the admissibility of the report as opposed to the
18 weight that is to be given to the report and to the fact that indicia of
19 reliability that we have provided are not in fact indicia of reliability
20 and that they should not be considered as such by the Chamber.
21 Just at the outset, the issue here is whether this report in
22 these criminal proceedings before this Tribunal is to be admissible and
23 whether the practice of this Tribunal and in particular this Chamber
24 allows it to be admitted into evidence. In that respect, citing a
25 Milutinovic decision and decisions that -- reliance by the Special Court
1 for Sierra Leone we think does not sufficiently prove that --
2 sufficiently show that the Tribunal's practice is different than this --
3 or these two decisions, these two Milutinovic decisions, which the
4 Prosecution still believes are rather exceptional.
5 A narrow selection of factors that Ms. Higgins mentions and the
6 broader selection that was chosen by the Milutinovic Chamber, again, do
7 not speak against admission of this report. What is important to show is
8 that there is a prima facie showing of reliability, that there are
9 indicators that only prima facie showing of reliability is required, and
10 the Prosecution indeed showed a number of these indicia that demonstrate
11 this prima facie reliability, which is a very low threshold to be
12 satisfied by a piece of evidence that is to be admitted.
13 Therefore, we think -- the Prosecution still submits that the
14 report possess sufficient indicia as we have shown in our reply, and I do
15 not think that it is necessary that I go over each and every factor.
16 I would just like to address the issue of the self-described role
17 of the Croatian Helsinki Committee for Human Rights in human rights -- in
18 recording and broadcasting human rights abuses. We have in our footnote,
19 in our reply, we have indeed -- we have added the web site of the
20 Helsinki Committee for Human Rights to demonstrate that this is an
21 organisation of some merit as is visible from its web site, but we do not
22 confine ourselves to this web site to show the rule of the Helsinki
23 Committee. This is, after all, why we have a witness today who is to
24 testify about its role and its other activities aside from its activities
25 that are related to this report.
1 The indicia of unreliability that Ms. Higgins and, indeed, the
2 Cermak Defence have cited do not necessarily take away, even if they are
3 proven to be true, do not, first of all, take away necessarily from the
4 indicia of reliability that the Prosecution has shown; and we think that
5 it is erroneous to claim that these indicia of reliability do not go to
6 weight to be given to the report but instead to its reliability and,
7 therefore, its admissibility before the Tribunal. As one example,
8 hearsay and no availability for cross-examination of unidentified or
9 inadequately identified individuals or lack of foundation evidence have
10 been found as --
11 THE INTERPRETER: Would you mind slowing down. Thank you.
12 MS. FROLICH: -- factors for -- I am sorry. Maybe I speak a
13 little bit too fast. I apologise to the interpreters and to the Chamber.
14 Maybe have been found to be, indeed, factors that go to weight to
15 be given to a report as cited by the Tribunal practice, and -- which this
16 Chamber has, indeed, endorsed this practice and admitted a number of
17 documents under similar circumstances. When the Prosecution mentioned
18 witnesses Jan Elleby and Mikhail Ermolaev, for example, this -- this
19 example did not only go to show the hearsay evidence as being admissible
20 in such a manner through these two witnesses but also to demonstrate that
21 when there was information recorded in a certain way by certain
22 individuals such as, for example, UNCIVPOL monitors, they were found to
23 be admissible by this Chamber.
24 And in short, we do not believe that it has been sufficiently
25 proven that there are inadequate indicia reliability as to render the
1 report inadmissible.
2 We also think that -- believe that the claim that the aim of the
3 report as well as the aim of the video was a political aim. These are
4 things that are conclusions to be drawn by the Chamber after weighing all
5 relevant evidence that it has admitted, and they -- indeed, any purpose
6 behind the report has -- can only weighed after assessing all available
7 evidence, both that was submitted by the Prosecution and by the Defence.
8 This goes, as I said, both to report and to the video. Claiming
9 that it's a political montage is at this point, especially before hearing
10 the evidence of Witness 140, a very premature assessment and very
11 obviously one-sided assessment.
12 I would like to address the two examples that were given by
13 Ms. Higgins. On pages -- I believe it was at page 41 --
14 JUDGE ORIE: 41 and 45.
15 MS. FROLICH: -- 41 and 45 of the report. I believe, first of
16 all, that questions can be put to Witness 140 whether or not he has any
17 additional knowledge about this incident that might add value to the
18 evidence that is in this report. But in any case, the Prosecution's
19 claim was not to say that each and every fact was described -- each and
20 every piece of evidence described in the report was so clearly described
21 that it would be clear for -- from who the interviewee was and whether
22 this happened to this interviewee or not. It was to say that most
23 instances were clearly shown to be such, that -- in any event, I would
24 submit we should -- the Chamber should defer the decision until the
25 Witness 140 has had a chance to testify.
1 And, finally, as to the video documentary film, storm over
2 Krajina, whereby Ms. Higgins' submitted portions do not assist the
3 Chamber in determining if the video is reliable in its entirety, I would
4 submit that precisely the fact that some portions of this video have been
5 found reliable enough to be admitted by the Chamber goes to show that the
6 entire video possesses sufficient indicia of reliability because of the
7 method of work that the filmmakers have employed in producing this film.
8 The fact that there are overlays, overlaps, and that there's
9 undated pieces, well, the Prosecution was very clear that the primary
10 purpose of this individual is to provide context to the testimony of
11 Witness 140, in particular, his comments that 11 appearances that he
12 makes in the -- during the documentary, which he -- he makes comments
13 that if they were taken out of context, perhaps would not be easily
14 understood; and, more so, even more than just contextual evidence, the
15 Prosecution position is that hearsay evidence, again, goes to weight and
16 not to admissibility of a piece of evidence.
17 This is all I would have to say to -- in reply to Ms. Higgins'
18 comments. I would ask that the Chamber defer its decision on
19 admissibility in the event that it does not reject the Cermak Defence
20 request that it defer its decision on admissibility until after Witness
21 140 has testified.
22 Thank you, Mr. President, Your Honours.
23 JUDGE ORIE: A few questions, perhaps, and a few attempts to
24 clarify matters.
25 I understood Ms. Higgins to say that the Milutinovic decision was
1 part of pleadings before the Court of Sierra Leone, rather than that they
2 were adopted by the Sierra Leone Court, as I understood you, Ms. Higgins;
3 is this correct?
4 MS. HIGGINS: Your Honour, that is correct, and it's a Defence
5 response to an application to have NGO documents submitted, which is
6 still pending before the court.
7 JUDGE ORIE: Now, if it pleaded before the magistrate court in
9 another court, does that in itself add anything to what apparently is the
10 convincing argument of the decision itself?
11 MS. HIGGINS: Firstly, I'd make two points, the first point
12 being, the fact that it may be a different or lesser-used approach
13 described as exceptional may or may not be correct. If it is correct,
14 that assessment that it is it exceptional, doesn't necessarily mean that
15 it's wrong because once one considers that decision one will see that it
16 was a thoroughly reasoned decision giving specific detail and specific
17 consideration to the content of the entirety of the report.
18 The second appointment I would make is this, in relation to the
19 fact that it has been pleaded before the Special Court of Sierra Leone.
20 Defence counsel in that case obviously took a view about the strength of
21 the decision itself and whether or not it was legitimate to rely upon
22 that decision in trying to persuade the Court also to follow the
23 Milutinovic route. I do not say and do not wish to try and assess what
24 the Chamber in that court will do, but it is an approach, an approach
25 which is being used and relied upon. I go no further than that. But I
1 submit that it was relevant for this Chamber to know about the frequency
2 with which that decision sought to be relied upon.
3 Thank you.
4 JUDGE ORIE: Thank you, Ms. Higgins.
5 Ms. Frolich, listening to you, I got the impression that you
6 either did not fully understand what Ms. Higgins was saying or that did
7 you not wish to understand it. Where you said that portions of what we
8 find in the video are admitted into evidence, so therefore reliable
9 enough to consider the whole of the video, now, the argument, if I
10 analyse it, it means as long as there are reliable portions in the video,
11 you can mix it up with whatever you want because that would justify
12 admission into evidence of the whole of the video with whatever you have
13 mixed it up. Is that your argument?
14 MS. FROLICH: No, Mr. President. The argument that I was trying
15 to make - perhaps I was not successful - was if there reliable portions,
16 that adds to the likelihood that the remainder of the video is reliable.
17 But I think that it is clear from the video what has been edited and what
18 has not, and it's clear to the Chamber what conclusions it can draw.
19 JUDGE ORIE: Yes. Now, I think Ms. Higgins showed us this
20 specific portion because apparently she has concerns about combining a
21 statement by one of the accused on video, to combine that with the images
22 of people who apparently have -- at least are not shown on this picture
23 to have freedom of movement, packed in a rather small room, I think the
24 concern of Ms. Higgins is that she says, This is biased information
25 because there is a clear suggestion that what the person speaking says is
1 lip service to what doesn't exist in reality, where Ms. Higgins says, I
2 don't know whether you've taken these pictures from. Was it at the same
3 time? Was it half a year before? Is it in Bosnia? Is it in -- I think
4 that's her major concern, and to say, well, to show these together, that
5 -- and you have not -- at least not clearly addressed that concern.
6 MS. FROLICH: I do understand this concern. I -- I do agree with
7 Ms. Higgins. I can agree fully with that concern.
8 Again, I would reiterate the position that it is clear what is
9 what in the video because it is it clear from the images shown that the
10 images are not part of the interview that General Cermak gave, and it is
11 clear that, also from the images shown, they are undated.
12 Therefore, what weight can be given to this particular set of
13 images is up to the Chamber to decide. I can -- I can certainly agree
14 that very little weight can be attached to such images. I do not think
15 that takes away from showing the interview that General Cermak gave, for
16 example, or the entire context of the video that is shown as a -- the
17 video that is it shown as context to the evidence of Witness 140, and,
18 again, I believe that Witness 140 can provide more details about this
19 video and whether his own statements were taken out of context or not,
20 which is what the Prosecution is concerned with the most.
21 JUDGE ORIE: Yes. Finally, is it your intention to play the
22 whole video in court, or are we just supposed to look at it?
23 MS. FROLICH: No, Mr. President. We do not want to waste the
24 Chamber's time unless the Chamber so pleases. The video lasts 50
25 minutes. We thought it might be a little too long unless the Chamber is
1 so inclined, of course.
2 JUDGE ORIE: Yes. Well, it's not a matter of taking the
3 Chamber's time but whether to take courtroom time because the Chamber
4 would have to look at it anyhow. Unless we would immediately now, on the
5 basis of Ms. Higgins's submissions, decide that it's excluded.
6 Yes, I don't want to make this -- and I think the positions are
8 [Trial Chamber confers]
9 JUDGE ORIE: We will have an early break so that the Chamber is
10 in a position to consider the matter.
11 We will resume at five minutes past 4.00.
12 --- Recess taken at 3.38 p.m.
13 --- On resuming at 4.05 p.m.
14 JUDGE ORIE: The Chamber has considered the various submissions,
15 in relation to the report, Military Operation Storm and Its Aftermath,
16 and the video.
17 As far as the video is concerned, the Chamber defers its decision
18 on admission and, at the same time, is aware that this might cause you
19 some problems as far as cross-examination is concerned. One of the
20 reasons to defer the decision is that the Chamber feels unable to finally
21 decide the matter on the basis of just a portion shown to it. At the
22 same time - and I'm now speaking for myself, and I know this is if not
23 for the full 100 percent then at least for a large percentage true for my
24 colleague - is that knowing that, Ms. Higgins, that you would like to
25 make submissions on the matter, I refrain from looking at the video at
1 all, so I have not seen any further than what you have showed us, and
2 that's usually not the case. If statements or videos are submitted to
3 the Chamber, we usually look at it, but we have -- at least I'm speaking
4 now for myself, but again, from what I know, it's mainly true for my
5 colleagues, as well, that we refrained from first gaining an impression
6 before having listened to you.
7 That also means that since the Chamber, of course, then will have
8 to look at that we hope to give a decision by tomorrow morning when we
9 have reviewed the video as a whole, which might accommodate some of the
10 concerns for cross-examination.
11 Ms. Frolich, the Chamber understands that you didn't wish to play
12 it, so I don't think that apart from the abstract, no reference will be
13 made to the video.
14 MS. FROLICH: The intention was to play a few minutes of the
15 video to put some of the comments of the witness in context as I was
16 going through my direct examination, Your Honour, with your leave.
17 JUDGE ORIE: Yes. Well, then, it will be MFI'd of course,
18 whatever the witness says.
19 MS. FROLICH: Yes.
20 JUDGE ORIE: If it's found that the video would not be admitted
21 into evidence, then we still could consider whether or not that small
22 portion - I don't know what it is - whether there would be objection
23 against admission of that small portion as well.
24 We'll then wait and see.
25 Now I turn to the report. With respect to the report, the report
1 Military Operation Storm and Its Aftermath, the Chamber has decided that
2 it will consider the report for admission but only in part. Not
3 considered for admission are part 2 of the report, which is devoted
4 exclusively to Sector North; and also not considered for admission are
5 any statements purportedly made or represented to have been made by any
6 of the accused.
7 Now, the non-admission of the part of the report containing
8 statements purportedly made or represented to have been made by any of
9 the accused shall not prevent the Prosecution from seeking to elicit
10 evidence on what apparently is described in the report from the witness,
11 but then, of course, it would be required to lay a foundation as to the
12 source of knowledge of the witness.
13 Where statements made in the report or information given in the
14 report makes reference to both Sector South and Sector North, in such
15 cases, the statements made or the information given as to Sector North
16 shall be handled by the Chamber similarly to its approach to part 2 of
17 the report.
18 The Chamber further wishes to make clear two matters to the
19 parties; first, that any eventual admission decision as to the remaining
20 parts of the report - the parts not yet excluded - does not mean that the
21 Chamber will accept any conclusions made or reached in the report; and
22 the Chamber further wants to make clear that it will be critical of any
23 conclusions so made or reached in the report when drawing its own
24 conclusions on the basis of the totality of the evidence.
25 The parties may proceed and examine the witness as to the report
1 in line with the guidance here given; and, finally, the Prosecution is
2 invited to already start preparing for redactions in line with the
3 guidance hereby given.
4 Ms. Frolich, are you ready to call your next witness?
5 MS. FROLICH: Yes Mr. President. The Prosecution is ready and
6 calls Witness 140, Professor Zarko Puhovski.
7 Mr. President, if I can just briefly address the Chamber before
8 the witness comes in, just in relation to the part of the Chamber's
9 decision where it said that you would not consider Sector North for part
10 -- part 2, Sector North, for admission. I would just like to clarify
11 that the witness in proofing clarified to the Prosecution that the
12 portion of the report that he wrote was not in fact as previously stated
13 by the witness the conclusion to Sector South part, first part of the
14 report, but introductory part to the second part, and this was an error
15 on his part, and I do not wish to pre-empt the witness testimony, but
16 this part which he wrote which relates to both Sector North and Sector
17 South is in fact located in the beginning of part 2.
18 JUDGE ORIE: It may be clear to you, Ms. Frolich, that the
19 Chamber doesn't want to cross the borders of the indictment, and if the
20 witness can tell us more about what happened across those borders, the
21 Chamber is not interested -- interested at this moment in hearing of
22 this. But -- one second.
23 [The witness entered court].
24 JUDGE ORIE: First of all, good afternoon. Can you hear me in a
25 language you understand?
1 THE WITNESS: Yes.
2 JUDGE ORIE: Yes. Mr. Puhovski, before you give evidence in this
3 Court, the Rules of Procedure and Evidence require you to make a solemn
4 declaration that you will speak the truth, the whole truth, and nothing
5 but the truth.
6 The text is now handed it out you by Madam Usher. May I invite
7 you to make that solemn declaration.
8 THE WITNESS: [Interpretation] I solemnly declare that I will
9 speak the truth, the whole truth, and nothing but the truth.
10 JUDGE ORIE: Thank you, Mr. Puhovski. Please be seated.
11 THE WITNESS: [Interpretation] Thank you.
12 JUDGE ORIE: Mr. Puhovski, we are just dealing with a procedural
13 matter, although not unrelated to your testimony. If you would just
14 allow the Chamber to continue for a second.
15 Ms. Frolich, is it clear what inspired the Chamber to do this,
16 and if the witness would know a lot about what has happened in another
17 part of the world, I mean, it's a matter of relevance.
18 MS. FROLICH: I do understand, Mr. President. I wanted to point
19 out the fact that -- of course, the Chamber would have to look at this,
20 but the part that the witness in fact wrote did relate to Sector South
21 part of the report as well. It was just located in a different place,
22 which the witness can explain.
23 [Trial Chamber confers]
24 JUDGE ORIE: Well, the reasoning behind the -- I would say
25 provisional ruling because what we said is we decided not to consider.
1 We said something about a mixture North and South elsewhere in the
2 report, if there would be relevant material for Sector South in part 2,
3 which now apparently would be within direct knowledge of the witness.
4 You may address that, and, of course, we'll deal with the matter on the
5 basis of what I think everyone understood was our decision not to spend
6 time on irrelevant geographical parts.
7 If you would please keep that in mind, then you may proceed.
8 MS. FROLICH: Thank you very much Mr. President.
9 WITNESS: ZARKO PUHOVSKI
10 [Witness answered through interpreter]
11 Examination by Ms. Frolich:
12 Q. Good afternoon, Professor Puhovski.
13 A. Good afternoon.
14 Q. Could you please state your full name for the record.
15 A. Zarko Puhovski.
16 Q. What is your occupation, sir?
17 A. I'm a professor at the Faculty of Philosophy at the Zagreb
19 Q. What was your occupation during the period from 1993 to 1998 and
20 2000 to 2007?
21 A. In the earlier period, I was a member and deputy president; and
22 in the latter period, the president of the Croatian Human Rights
23 Committee, Helsinki
24 Q. Professor Puhovski, did you give a statement to the Office of the
25 Prosecutor on the 13th and 14th June, 2007?
1 A. I did.
2 MS. FROLICH: Madam Registrar, could we have -- sorry,
3 Mr. Registrar, could we have 65 ter 6798 on the screen, please.
4 Q. On the screen in front of you, do you see the first page of this
5 document that Mr. Registrar is showing to you?
6 A. I do.
7 Q. Is this the statement that you gave to the Office of the
8 Prosecutor on 13 and 14 June 2007 and signed by you at the bottom?
9 A. Yes.
10 Q. Did you also provide information to the Office of the Prosecutor
11 that was put in a supplemental information sheet on 18 December 2008 and
12 9th and 11th February, 2009?
13 A. I did.
14 MS. FROLICH: Mr. Registrar, could we have 65 ter 7152 on the
15 screen, please.
16 Q. Do you see the document on the screen in front of you?
17 A. I do.
18 Q. Is this the supplemental information sheet that you provided on
19 18th December, 2008
20 bottom, and --
21 A. Yes, save for the fact that I think it says 2008, and it must be
22 a mistake.
23 Q. Indeed, yes.
24 JUDGE ORIE: What year should it be?
25 MS. FROLICH: It should be 2009 -- 2008 instead of 2009. 1008
1 JUDGE ORIE: 1008 seems to be quite in the past. If you wouldn't
2 mind -- well --
3 THE WITNESS: [Interpretation] I am quite old but not that old.
4 JUDGE ORIE: 18th of December, to say, 2009 sounds not correct to
5 me because that's in the future.
6 Ms. Frolich, was the supplemental information sheet prepared both
7 six weeks ago and a couple of days ago?
8 MS. FROLICH: Some information was put together on the 18th
9 December, and then continuation was -- continued proofing was done on 9th
10 and 11th February.
11 JUDGE ORIE: Of this year?
12 MS. FROLICH: This year.
13 JUDGE ORIE: So I'm now still -- oh, yes, I see. It's not the
14 date at the top, but it's the date further down.
15 MS. FROLICH: Yes, Mr. President.
16 JUDGE ORIE: Yes. There I see. Yes, I think obvious mistakes do
17 not need to be clarified. It is on the record that the 18th December is
18 a reference to 6 weeks ago and not to 1.000 years and 6 weeks ago.
19 Please proceed.
20 MS. FROLICH: Thank you, Mr. President.
21 Q. Professor Puhovski, after both your statements that we have just
22 seen were recorded, were they read back to you in the language you
23 understand, or did you have a chance to read them in a language you
25 A. I read them myself.
1 Q. When read to you, did the statements accurately reflect what you
2 said at the time?
3 A. Yes.
4 Q. Did you have a chance to review both the original statement from
5 2007 and the supplemental information sheet, again, in the language that
6 you understand?
7 A. Yes, I did.
8 Q. Were these two statements in full accordance with the truth as
9 you know it?
10 A. Yes.
11 Q. Would you give the same statement today if you were asked the
12 same questions?
13 A. Yes.
14 Q. Thank you.
15 MS. FROLICH: Mr. President, could both the 65 ter 6798 and 7152
16 be admitted into evidence.
17 JUDGE ORIE: Yes. What we know by now is there was an objection
18 against paragraph 14 and 15 of the statement of 2007 where reference is
19 made to the report. The Chamber is not aware of the position taken by
20 Defence counsel on the supplemental information sheet.
21 Could I hear whether there is any objection against admission of
22 the supplemental information sheet?
23 MS. HIGGINS: Your Honour, in respect of the supplemental
24 information sheet, in fact, two were served, and I'm currently in the
25 process of trying to reconcile the differences between the two of them.
1 So primarily, Your Honour, I would ask, perhaps, that they be marked for
2 identification until I can make a final determination for my part.
3 JUDGE ORIE: Yes. We'll assign numbers, first of all, to 6798,
4 the 2007 statement. Mr. Registrar, that would be?
5 THE REGISTRAR: Your Honours, that will be Exhibit P2316. Thank
7 JUDGE ORIE: 2316 is marked for identification. A decision on
8 admission will follow most likely together with the decision on the
9 report. Then 65 ter 7152, supplemental information sheet.
10 [Trial Chamber and registrar confer]
11 THE REGISTRAR: Your Honours, this document shall be given
12 Exhibit P2317, marked for identification. Thank you.
13 JUDGE ORIE: Yes. And once you have resolved the problem, of
14 course - the Chamber is unaware of because we have only received one
15 supplemental information sheet - would you please let us know.
16 I took it, since I did not hear from other Defence counsel, that
17 they joined the submissions made by Ms. Higgins, and that is now
19 Please proceed.
20 MS. FROLICH: Thank you, Mr. President. At this point I would
21 like to seek your permission to add two documents that are not on the
22 65 ter list presently, which are provisionally signed 65 ter numbers 7148
23 and 7150 to 65 ter list.
24 JUDGE ORIE: Objections?
25 MS. HIGGINS: Your Honour, in relation to the first document
1 that's cited 7148, I have an objection as to its admissibility, but I
2 know that Your Honours are concerning initially the 65 ter issue.
3 JUDGE ORIE: Yes.
4 MS. HIGGINS: Which I have no observations on.
5 JUDGE ORIE: And the same is true for 7150, 65 ter? No
7 MS. HIGGINS: No objections.
8 JUDGE ORIE: Yes. Then leave is granted to add 65 ter 7148 and
9 7150 to the 65 ter list, and this is not a decision on admission.
10 Please proceed.
11 MS. FROLICH: Thank you, Mr. President.
12 I would like to read the summary of witness evidence,
13 Mr. President.
14 JUDGE ORIE: Please do so.
15 MS. FROLICH: Professor Zarko Puhovski was a member of the
16 Croatian Helsinki Committee for Human Rights from its inception in 1993
17 to 1998 and from 2000 to 2007 when he became its chairperson. The
18 witness describes the role of the Croatian Helsinki --
19 THE INTERPRETER: Please slow down.
20 MS. FROLICH: -- its procedure for recording human rights abuses
21 and compiling reports of these abuses; its fact-finding missions to the
22 Krajina in 1995. The witness also describes -- sorry, I was receiving
23 French translation for a moment.
24 The witness also describes the political climate and actors in
1 report, Military Operation Storm and Its Aftermath, which details human
2 rights violations in Sectors North and Sector South in Croatia during and
3 after Operation Storm. Information contained in Croatian Helsinki
4 Committee report was disseminated to the Croatian authorities. Croatian
5 officials denied crimes happened or denied responsibility for these
7 The witness describes how the Croatian Helsinki Committee created
8 its lists of missing and killed and in particular that it would only
9 place a name of a killed person on such a list if it was confirmed by two
10 independent sources. Information was also corroborated by other NGOs and
11 Helsinki Committee offices in the region.
12 Finally, the witness describes his visit to Knin in August 1995,
13 including his observations during that visit. According to the witness,
14 no comprehensive or competent investigation was carried out by the
15 Croatian authorities into crimes committed in the aftermath of Operation
17 That concludes the summary, Mr. President.
18 Q. Professor Puhovski, could you please describe the role of the
19 Croatian Helsinki
20 A. The Croatian Helsinki Committee was set up in late March 1993.
21 It consisted of 22, 30 mostly well-known and well reputed public persons
22 from Croatian society; artists, politicians, and so on and so forth. It
23 had been 20 and 25 employees who, when our financial situation was
24 better, had duties to discharge in the office in Osijek, later on in
25 Vukovar, Karlovac, later on in Knin, Dubrovnik, as well as in the central
1 office in Zagreb
2 and the analysis of the situation with regard to the exercise of human
4 Many citizens of Serb ethnicity contacted us who believed that
5 their rights were threatened. On average, 2.000 individuals would
6 approach us every year, and the absolute majority of them was of Croatian
7 ethnic origin, but there were the Serbs and the Roma present in the
8 percentages as well.
9 Q. Could you describe what the status of the Croatian Helsinki
10 Committee was as an organisation in Croatia, under Croatian law?
11 A. We were a non-governmental organisation, initially set up under a
12 piece of legislation that remained from the former system as a
13 representative of a foreign organisation, that's to say the international
15 Legally speaking -- or, rather, for several years we were an organisation
16 that was subject to many attacks because it was believed that we were
17 more concerned with the rights of the Serbs in Croatia rather than the
18 Croats, and there are over a hundred articles and broadcasts of political
19 functionaries attacking us. Our activists were under attack, as well,
20 but the situation began settling down and calming down towards 1998 and
22 Q. Why do you think the Croatian Helsinki Committee was being
23 attacked in the years that you talk about?
24 A. Because the committee was outside of what you would term the
25 mainstream, that's to say, the prevalent political line in Croatia
1 because it represented the rights of those who -- whose rights were not
2 even referred to as rights and could therefore not be considered to have
3 been violated either; or the individuals, the violation of whose rights
4 had to be tacitly ignored because it was believed that in times of war
5 the insistence of rights of some, like, for instance, the members of the
6 Serb minority, could endanger or aggravate the position of Croatia
8 Q. What, if any, political affiliations did the organisation have or
9 does still have today?
10 A. No. The members of the organisation were individuals of
11 different religious, political, and other convictions, but under the
12 statute of the international Helsinki
13 have any political affiliations in terms of membership of the political
14 parties or liaisons or connections with the bodies of any state.
15 Q. What, if any, other types of association did -- or does the
16 Croatian Helsinki Committee have? Other types of associations.
17 A. I apologise. I don't understand the question.
18 Q. What, if any, other groups in Croatia
19 Helsinki Committee work with or does work with?
20 A. The Croatian Helsinki Committee primarily cooperated with the
21 Helsinki Committee or the organisations similar to it by nature in
23 well; then with the fund for humanitarian law led by Madam Natasa Kandic,
24 and with a number of non-governmental organisations in Croatia
25 the Civic Committee for Human Rights and such-like.
1 Q. Thank you for that explanation. Now, Professor Puhovski, how
2 well did you know Petar Mrkalj?
3 A. I'm sorry. The interpretation was not complete.
4 Q. Who is Petar Mrkalj -- who was Petar Mrkalj, and how well did you
5 know him?
6 A. I knew Petar Mrkalj well for almost the last 20 years of his
7 life. He was an associate of the Croatian Helsinki Committee ever since
8 its inception, and from 1994 his executive manager, the person who was in
9 charge of -- he was a person who was in charge of the staff in the
10 Croatian Helsinki
11 Karlovac who was a prominent figure on the trade union scene in the last
12 years of Yugoslavia
13 some sort of social and political action could be witnessed.
14 Q. In paragraphs 2 and 3 of your supplemental information sheet,
15 which is P2317 MFI
16 Did you know these people personally?
17 A. Let me just say that I don't have this version of the report with
18 me here. Of course, I knew the people who were involved in the making of
19 the report because I was the deputy president of the committee they
20 worked for. All of them were individuals who had professionally been
21 working for the Croatian Helsinki Committee in either Zagreb, Karlovac,
22 or Knin.
23 Q. I beg your pardon.
24 MS. FROLICH: With the Chamber's leave, if we have hard copies of
25 the witness's statements, if Madam Usher could provide them to the
1 witness. Thank you.
2 Q. I would like to refer you to paragraph 6 of your supplemental
3 information sheet, which is the document you provided to the Office of
4 the Prosecutor yesterday, and ask you how and when did you learn of the
5 methodology that was used to collect the information on fact-finding
7 A. To put it simply, we learned as we went along how we should go
8 about things. We had only members of the committee. We didn't even have
9 an office at the time. We were given a small office area of some 30
10 square metres. Then we got a bigger office, and gradually we employed
12 From the start, it would so happen that initially dozens and
13 later on hundreds and thousands of people would approach us, seeking to
14 have their rights honoured, and as -- people gained experience. As of
15 autumn 1994, we organised in-house, weekend seminars together with some
16 other non-governmental organisations from Zagreb and elsewhere where,
17 together with the people from the International Helsinki Federation and
18 the ICRC as well as some of our colleagues from the faculty of law, we
19 engaged in the effort of training our men, primarily in the fields of
20 gathering information, report-writing. The aim was to make sure that the
21 reports are written as objectively as possible and as quickly as possible
22 and that every single fact is verified and double-checked.
23 We had three to four seminars of this sort, which had as their
24 purpose, also, the exchange of experience. The attendees of the seminars
25 who were members of these various organisations had already had several
1 years of experience by that time.
2 Q. Thank you for that explanation. That was going to be one of my
3 next questions. I, however, have in mind something more specific. When
4 in paragraph 6 you mention when the team members, so of the -- I believe
5 that you should take a look at paragraph 6 of the supplemental
6 information sheet that you provided to the office recently. And you
7 mentioned that when teams returned from mission, you said, I quote:
8 "Either Ivan Zvonimir Cicak ..." or you, "... would talk to the team
9 members about the mission details in debriefings."
10 Could you describe these debriefings in more detail?
11 A. This was roughly the procedure. A team of some two to three
12 individuals would go into -- to visit a couple of villages in close
13 proximity of each other for a couple of days. Thereupon, they would go
14 back to Zagreb
15 Petar Mrkalj, who was in charge of the entire team. Several days later,
16 Petar Mrkalj would organise their meeting with either Mr. Cicak, who was
17 the president of the committee at the time, or with me - I was the deputy
18 president chairman at the time - rarely with both of us, where they would
19 present their observations to us. We had already received a hand-written
20 version of the report by that time. We would also have occasion to see
21 the photographs that they would bring along with them, and very often we
22 would also listen to the audiotapes of the statements taken from
24 Q. Other than information that was provided to you by the team
25 members, was there any other -- what other source, if any, did you have
1 of information that was presented to you?
2 A. As a committee, we used all possible information we could get by,
3 using media information that we tried to verify, official positions of
4 governmental functionaries, documents of the UN, the ICRC, as well as
5 documents of other NGOs. We also used information received from
6 journalists who happened to be in certain locations.
7 For example, in the case of Varivode, we received information
8 from a Czech TV crew which happened to be there. Varivode is the place
9 where a month and a half after the operation, a grave crime occurred.
10 Also, we kept having people appearing at the office to volunteer,
11 bringing in information, which in turn needed to be checked. Frequently,
12 those people were under a lot of pressure, emotional pressure, and not
13 everything they said to us could be taken for granted.
14 In any case, we took all of those factors into account, be it in
15 terms of which locations to go or to try to corroborate that through the
16 facts obtained by our volunteers while visiting certain locations.
17 Q. Now, in paragraph 7 of the same statement, you mentioned that
18 Mr. Mrkalj was afraid that something would happen to the material. And
19 what -- do you know why he was afraid, and would you say his fears were
21 A. Well, he mentioned that back in 1995 and 1996. I frequently
22 mocked him, and I told him he was paranoid. But it was subsequently
23 proven that the secret service of the Ministry of Defence launched an
24 operation under the Code name of "Chameleon." Their task to penetrate
25 the Croatian Helsinki
1 and they wanted to get by as much information and documents we had as
3 In 2001, I was president of the HHO, and the then executive
4 director, Mr. Gazivoda, was summoned to come to the Ministry of Defence
5 in order for them to show us all those documents because the operation
6 became publicly known by that time and some of their staff disciplined.
7 They had a number of documents, including hand-written notes which were
8 kept during meetings and exchanged among us and then discarded. To put
9 it in a different way, unfortunately, Mr. Mrkalj seems to have been
11 Q. Do you know why this operation took place and why your offices
12 were searched and documents copied?
13 A. As far as I could understand, going through the information of
14 those who were disciplined for carrying out that operation, their
15 justification was that we monitored the movements and tactics of the
16 Croatian army, and they believed we were a legitimate target for such an
17 investigation by an MOD service.
18 Q. Now, if I could turn to drafting of the report which you mention
19 in paragraph 14 of your 2007 statement.
20 MS. FROLICH: That's 2316.
21 Q. Report, Military Operation Storm and Its Aftermath. That was, as
22 you say, written by Mr. Mrkalj.
23 You say you wrote the conclusion for the version published in the
24 form of a book in 2001. Could you clarify what you meant by this
25 conclusion that you wrote?
1 A. The final report resulting from all the field investigation came
2 about in 1999, while I was in charge of a graduate course in Austria
3 was not actively participating in the work of the Croatian Helsinki
4 Committee. The report was completed by Mr. Mrkalj. That version
5 together with the photographs was distributed in some 150 copies to all
6 important state institutions, the media, as well as foreign missions in
8 Upon my return to the Croatian Helsinki Committee in the summer
9 of 2001, we managed to receive financial support from the Norwegian
10 Helsinki Committee and the Nieman Foundation to publish that report in
11 the form of a book. On that occasion, I drafted the text following a
12 request of the executive council of the Croatian Helsinki Committee. I
13 drafted that on the fifth anniversary of Operation Storm. It was made
14 public as a statement of the Croatian Helsinki Committee in August 2000.
15 We added that to the second part of the book, since the first one was
16 already being edited, and for financial reasons, we completed, first, the
17 part which had to do with the south, and then what followed was another
18 part that had to do with Sector North.
19 My text appeared as an introduction to the Sector North part, and
20 prior to the publishing of the book we were distributing our report on
21 Sector North by way of photocopies.
22 Q. Do you recall what were your main points from this introduction,
23 in fact? What did you write about in this introduction?
24 A. In the introduction, I basically wrote that five years back,
25 looking at the operation, it was necessary to mention the reasons for it,
1 and we believed it to be necessary from the point of view of human
2 rights. First and foremost, it eliminated something called the Republic
3 of Serbian Krajina, which was founded on a systematic denial of human
4 rights of all those inhabiting it, as well as carrying out attacks along
5 its borders into the Croatian territory and cutting off road
7 The text was officially adopted by our council, and in it I also
8 cautioned that that operation brought about a result of its own in which
9 there was serious violations of human rights, resulting in several
10 hundreds of deaths, and I also mentioned that a great many people had to
11 leave their homes. Basically, the effect of the operation was equal to
12 that of an ethnic cleansing.
13 Q. And did this introduction relate to Sector North, Sector South,
14 or both?
15 A. It had to do with both Sectors. It was the official position of
16 the Croatian Helsinki Committee on the fifth anniversary of the operation
17 we are discussing.
18 Q. Thank you.
19 MS. FROLICH: Mr. Registrar, could we show 65 ter 4674, first
21 Q. Professor Puhovski, I take it that this is the report, the book
22 report that we are discussing?
23 A. Yes, that is the book. I have a copy here, as well, in the
24 Croatian language. The one with the red cover is the English version of
25 the same book.
1 Q. And both were -- both versions were produced by Croatian Helsinki
3 A. That is correct.
4 MS. FROLICH: Could we go to page 206 in e-court in English and
5 page 194 in B/C/S.
6 Q. Professor Puhovski, is this the introduction that we have just
7 discussed, that you wrote?
8 A. Yes.
9 Q. Now --
10 A. However, this is page 193.
11 Q. We are -- the electronic versions of pages are different. Thank
13 A. In the book it is.
14 Q. Thank you, Professor.
15 What was the basis for -- you state certain conclusions in this
16 introduction. What was the basis for your conclusions that you set out
17 in this introduction?
18 A. Based on the report, since I double-checked the text prior to the
19 publication of the book, and based on the fact that we were still
20 receiving reports of many who were talking about what they went through
21 or their neighbours or members of their families, and based on the
22 reports we received from our colleagues in Belgrade and Bijeljina, where
23 there was the Helsinki Committee in charge of Republika Srpska, and based
24 on the interviews of my work-mates from the Helsinki Committee on their
25 own experience in the period between 1995 and 2000, it all served as the
1 basis of the text.
2 Q. Now --
3 JUDGE ORIE: Ms. Frolich, I'm working on the basis of the book as
4 attached to your submission, so therefore, I would be greatly assisted if
5 you would point at the pages numbering as we find them in the book.
6 MS. FROLICH: This is page -- in English, page 0610-1821, and I
7 -- that's the ERN number. Now, if -- if you would just allow me a moment
8 to find the pages in hard copy.
9 JUDGE ORIE: Yes. I think I found it more or less.
10 MS. FROLICH: The page is 193 in B/C/S and 205 in English in hard
11 copy, although the page number is not visible on the first page of the
12 actual introduction.
13 MR. MISETIC: Mr. President.
14 JUDGE ORIE: I'm afraid that I had the introduction for part 2,
15 pages 105 to 205, and now we're taken to -- and I'm looking at the hard
16 copy pages. So I'm really lost about six or seven kinds of numbering of
18 MS. FROLICH: If I --
19 MR. MISETIC: Mr. President, if I could also point out more
20 confusion. The P2317, which is the supplemental sheet, at paragraph 18
21 says that the conclusion is pages 135 to 136 of the English version.
22 MS. FROLICH: Yes. We have informed Defence counsel in an e-mail
23 yesterday of additional changes that were made by the witness after the
24 finalisation of the proofing note. Since it was so late, the only
25 recourse we had was to send an e-mail to the Defence counsel saying that
1 the conclusion that he talks about in the supplemental information sheet
2 is in fact an introduction which is, of course, located on different
3 pages of the report.
4 MR. MISETIC: Okay.
5 JUDGE ORIE: We try to ...
6 MR. MISETIC: My confusion is I don't think he -- I could be
7 wrong, but he corrected that, or was this corrected when he now gave the
8 92 ter declarations?
9 MS. FROLICH: I beg your pardon, it was not.
10 MR. MISETIC: Okay.
11 MS. FROLICH: Thank you.
12 JUDGE ORIE: Yes. And, Ms. Frolich, as I said before, we don't
13 usually have 65 ter documents, et cetera, so I worked on the basis of the
14 copy that was provided to us as an attachment to the motion. Now, what I
15 see is that in the table of contents, the introduction goes from page 105
16 to 205. 205 starts with Military Police Operation Storm, the first
17 chapter of part 2.
18 Now, the page numbering in the hard copy is not consistent with
19 the table of contents. Apparently, part 1 ends page 208. So the
20 numbering on the copy we received is incomplete, and now I do understand
21 that you took us to page 205, which is called: Introduction,
22 Presumptions For Facing the Past.
23 MS. FROLICH: Mm-hm.
24 JUDGE ORIE: And I do not see any such chapter in the table of
25 content, or do I?
1 MS. FROLICH: I believe that the table of contents is slightly
2 misleading because in fact the introduction is located on page 205 in
3 hard copy, so that is all I can say on --
4 JUDGE ORIE: Yes, whereas the table of contents says that the
5 introduction is to be found on page ...
6 MS. FROLICH: 105.
7 JUDGE ORIE: 105?
8 MS. FROLICH: Yes.
9 JUDGE ORIE: Now I see that the introduction takes a couple of
10 pages in the book --
11 MS. FROLICH: Indeed.
12 JUDGE ORIE: -- and where in the table of contents it takes a
13 hundred pages, nothing in relation to what we find then on the other
14 pages. I'm really confused about -- could you take us always to the
15 pages in the hard copy, and I'll forget about the table of contents.
16 It's ...
17 MS. FROLICH: All right. Thank you, Mr. President. This is,
18 therefore -- the page in hardcopy is 205 in English version, and that is
19 - I repeat the ERN number - 0610-1821, and it goes until page 208, and
20 that's ERN 0610-1824, and that is what is being shown in e-court, so I
21 think that at least that is correct.
22 JUDGE ORIE: Yes. The problem if we follow it in e-court, the
23 minute that you are dealing with another matter, it has disappeared,
24 whereas sometimes I want to use my own material.
25 Please proceed.
1 MS. FROLICH: Thank you, Mr. President.
2 Q. I would like to take you on page --
3 MS. FROLICH: This is page 207 in English, and in e-court this is
4 page 208, so I was referring to the hard copy page first. In e-court,
5 this is page 208, I believe.
6 Q. Your -- you list reasons why the action should be evaluated
7 negatively, and you mentioned some of it before. Could I ask you to
8 comment on subparagraph (e):
9 "The government's decision to institute organised occupation of
10 the flats and houses of expelled inhabitants."
11 What did you mean by this comment, and how did you come to this
13 A. After the operation ended, among the public, the general belief
14 was that things were over and that the people who had left that part of
16 Croatian ethnic background who had been expelled from Bosnia-Herzegovina
17 from those parts under control of the regime of Republika Srpska received
18 in hundreds of cases, and even more, written certificates or approvals of
19 local authorities, enabling them to move into the houses of those ethnic
20 Serbs who had left them. In other words, those people were not robbers,
21 people breaking into others' apartments and houses. They had documents
22 for which they rightly believed were valid. The local authorities were
23 distributing those in agreement with the Croatian governmental bodies,
24 especially following the decision that property rights temporarily be
25 suspended in that part of Croatia
1 Q. And how do you know this?
2 A. In the period between the fall of 1995 and the fall of 1997, we
3 had reports of over 200 people who tried to go back to Croatia and into
4 their houses. They found people there who for the most part were ethnic
5 Croats, Croatian citizens who had to leave Bosnia-Herzegovina, and who
6 literally displayed approvals for them to reside in those houses. There
7 was much litigation, many cases; I believe some are still pending before
8 certain courts. Many of them were resolved after a number of years only.
9 Q. May I just -- for the sake of clarification, what you just said
10 is in English is:
11 "They found people there who for the most part were ethnic
12 Croats, Croatian citizens who had to leave Bosnia-Herzegovina, and who
13 literally displayed approvals for them to reside in those houses."
14 Could you clarify, who was -- who were the ethnic Croats, persons
15 who tried to go back to Croatia
16 in houses, if that is clear to you.
17 A. Those people who wanted to return were ethnic Serbs of Croatian
18 citizenship. They wanted to return once it was made possible with the
19 things slowly beginning to normalize in terms of relations between
21 those homes, they came upon new inhabitants who, without exception,
22 basically, were ethnic Croats of Croatian citizenship who had been forced
23 to leave Bosnia-Herzegovina. Formally speaking, it was an ethnic issue.
24 However, the authorities used the logic that most ethnic Serbs of
25 Croatian citizenship who had left Croatia
1 never return. That is why they put those homes at the disposal of other
3 Q. Thank you, Professor. Now, you have -- as you stated, you have
4 read the report, you have edited the report, and this report contains a
5 lot of conclusions. Do you know what basis, first of all, existed for
6 making those conclusions?
7 A. Most of the conclusions are based on the reports of the teams
8 comprised of those working for the Croatian Helsinki Committee who toured
9 certain villages, hamlets, and towns in those parts of Croatia where
10 there were war activities in August 1995. Some of the conclusions are
11 based on general information from the media and those provided by the
12 authorities, as well as reports of international organisations, including
13 the ICRC, as well as the reports of NGOs from Serbia and
14 Bosnia-Herzegovina. Perhaps I shouldn't say Serbia, but what was then
16 Q. Did you personally agree with the conclusions that are set out in
17 the report?
18 A. I stand by all of the conclusions in general. There are certain
19 sentences or statements that I may disagree with, but it wasn't my role
20 as deputy president of the Croatian Helsinki Committee to censure or
21 change the views of those working for the committee and those of
22 Mr. Turkalj.
23 THE INTERPRETER: Interpreter's correction, Mrkalj.
24 THE WITNESS: [Interpretation] I did, however, insist that certain
25 formulations be changed, whereas most of them remained untouched. All of
1 those were included in the body of text that we are discussing here.
2 MS. FROLICH:
3 Q. Now what -- could you give us examples of such formulations that
4 you did not agree with?
5 A. In all of my discussions with the colleagues who had worked on
6 the report, I stood by an old rule for all journalists, which goes
7 something along the lines of: We want nouns and verbs rather than
8 adjectives. Whenever possible, I crossed out all adjectives from the
9 report because I thought adjectives are not something that is needed in
10 such a report, that facts alone suffice. For example, I remember of the
11 instance of cruel murders being referred to in the report. I often
12 stated that we were not the judiciary and that we were not to state
13 between more or less cruel murders but to talk about murders, full stop.
14 On the other hand, parts of the reports which had been drafted in
15 its original version in early 1998 contained the feeling of heated
16 debate, which existed in Croatia
17 formulations were rather sharp and heavy on the part of certain
18 politicians and governmental representatives being directed at Croatian
19 Helsinki Committee workers. For example, a person from Zadar stated that
20 our colleagues laughed out loud when they entered Varivode, seeing all
21 the victims there, because that would give them some ammunition to
22 further attack Croatia
23 That person was not in Varivode at all, but this only shows the
24 nature of attacks we were exposed to. Some such statements and reactions
25 were not appropriate, in my view. However, some of them remain in the
1 report still. I still believe that our basic intention and goal was to
2 present facts and that the basic formulations had to remain as originally
3 put down by Mr. Mrkalj or some of the other colleagues.
4 MS. FROLICH: Just as a matter of reference, this incident is
5 described on page 57 -- hard copy page 57 of the English version. I
6 unfortunately do not have the e-court page. That's 0610-1673, bottom of
7 the page.
8 Could we go to --
9 THE WITNESS: [Interpretation] If I may add just one thing.
10 MS. FROLICH:
11 Q. Yes, go on, please.
12 A. At page 63 of the Croatian hard copy, there is one formulation to
13 be found, which -- or, rather, a paragraph which I subsequently added,
14 which has the title "Graveyards," and I'm referring to the
15 paragraph which follows the title, and it speaks of the fact that many
16 victims could not be avoided when these civilians and soldiers were
17 killed, and it was stated that primarily what we were concerned with were
18 the victims and the families of these victims who had gone through the
19 plight. That was our major concern.
20 MS. FROLICH: I believe this is page 65 in English hard copy,
21 ERN 0610-1681. Again, I don't have an e-court page with me.
22 Q. Professor Puhovski, what did you know about position of General
23 Cermak in 1995 during and after Operation Storm?
24 A. That's it, precisely what we have on our screens now.
25 I -- my knowledge came from three sources. Our colleagues would
1 always come back from field work with the stories where they would tell
2 us that the political functionaries, those of them who wanted to speak to
3 them, would always answer by saying, We have to ask or consult with
4 General Cermak first. When I was in Knin, I spoke to Mr. Petar Pasic
5 who, on several occasions told me that it was General Cermak who decided
6 on all the important matters. Thirdly, I also present the viewpoint of
7 General Cervenko in this report, who as a commander had to have known
8 about these matters and who speaks very clearly of the position of
9 General Cermak, the way all of us perceived at the time.
10 MS. HIGGINS: Your Honour, I hesitate to interrupt, but Your
11 Honour has made a ruling concerning statements made by the accused, first
12 of all, and I would seek to agree with Ms. Frolich at which parts link to
13 Your Honours' ruling in consistency with what remains in the report
14 because there are many sections, that being one of them, which I would
15 seek to challenge. If I couldn't agree with Ms. Frolich, Your Honour, I
16 would seek a ruling from the Bench.
17 JUDGE ORIE: Yes.
18 MS. FROLICH: I'm not sure if I'm understood correctly
19 Ms. Higgins. Does it mean if she had in mind all portions of the report
20 that deal with General Cermak in any way, or just those portions that --
21 that the witness will comment on, if I show portions of the report to the
22 witness or ... I do not quite understand.
23 JUDGE ORIE: Ms. Higgins, I think that the ruling or the guidance
24 given portions not to be considered for admission were statements
25 purportedly made or represented to have been made by the accused, that
1 this were the accused speak. At the same time, the ruling included that
2 we would not accept that -- we would not admit that as -- those portions
3 of the report and, at the same time, that the Prosecution could elicit
4 such evidence from the witness after they had laid a foundation on what
5 the -- what the source of knowledge would be.
6 So we'll not just accept it from the report, saying, This is what
7 happened during the meeting; but if Ms. Frolich wants to elicit from the
8 witness asking him what happened on that day, how do you know, who told
9 you, were you present, et cetera, then we would consider such evidence.
10 MS. HIGGINS: Your Honour, I'm grateful, and I will perhaps save
11 my reservations for references to the report itself. Thank you.
12 JUDGE ORIE: Yes. And to the extent this is not clear, I could
13 try to take you back to the relevant portion of where I gave the guidance
14 but ...
15 MS. HIGGINS: I have that, Your Honour.
16 JUDGE ORIE: Yes. Thank you.
17 Please proceed.
18 MS. FROLICH: Thank you, Mr. President.
19 Q. Professor Puhovski, you mention in your statement, you mentioned
20 the -- that members of the Croatian Helsinki Committee participated in a
21 mission with the members of the International Helsinki Federation and
22 that they visited Krajina and Knin during that time. What do you know of
23 their visit and their mission to Krajina?
24 A. Immediately after the action was finished, we received first
25 information that at that time was fully unreliable and unverified.
1 Still, they pointed to some suspected events, and we informed our
2 colleagues at home and also our colleagues in Vienna.
3 In view of the situation as it existed at the time at the end of
4 the operation, and in view of the pressure under which the Croatian
5 Helsinki Committee had to work, we believed it would be appropriate for
6 some of our international colleagues to come to Croatia and see what the
7 situation was like. The mission spent some two days in the field
8 together with our colleagues, and they held a press conference on the
9 22nd of August, unless I'm mistaken, where the first findings of the
10 mission were presented. I remember going to Knin one day to check if
11 they would be able to reach Knin at all, and that was the extent of my
12 connection with the mission.
13 Q. What, if anything, do you know of a visit of the team members of
14 the International Helsinki
15 General Cermak in Knin?
16 A. Basically what was published in the report and what was published
17 at the press conference. Therefore, only second-hand knowledge.
18 JUDGE ORIE: Yes. The Chamber has ruled that on these kind of
19 meetings where Mr. Cermak is presented as what he said, et cetera, that
20 we'll not rely on the report. So we just forget about what the report
21 says in this respect. Could you please give details, Ms. Frolich, as to
22 how you learned about a meeting taking place at all, what you know about
23 those who were present -- well, so Ms. Frolich will explore with you the
24 sources of your knowledge of the meeting and what was said during that
1 Please proceed.
2 THE WITNESS: [Interpretation] This is what I heard. When the
3 colleagues came back from Knin, I talked to them --
4 JUDGE ORIE: May I stop you already. You're talking about
5 colleagues coming back from Knin. Could you tell us who you are talking
6 about. Who were these colleagues?
7 THE WITNESS: [Interpretation] Mr. Gashi and Mr. Hayden from the
8 International Helsinki
9 the Croatian Helsinki Committee who were on the team with them.
10 JUDGE ORIE: Yes. And did they return from a meeting you
11 referred to?
12 THE WITNESS: [Interpretation] They returned from a 2-day stay at
13 Knin at which time, they had, as they told me, a meeting with Mr. Cermak.
14 JUDGE ORIE: Yes. And do you remember what point in time that
16 THE WITNESS: [Interpretation] At what point in time during their
17 stay in Knin, unfortunately, I don't know. I only know that over the two
18 days that they spent in the area they spoke to General Cermak. That's
19 the extent of what I know.
20 JUDGE ORIE: And the two days were what dates, if you remember.
21 THE WITNESS: [Interpretation] It must have been the 15th and the
22 16th of August, unless I'm mistaken, of 1995.
23 JUDGE ORIE: Yes. Did they tell you whether one of them or more
24 of them had been present during this meeting?
25 THE WITNESS: [Interpretation] All four of them were, to my
1 knowledge. All four of them attended the meeting.
2 JUDGE ORIE: And when they told you about this meeting, who was
3 telling the story? Was it all four of them or everyone, in bits and
5 THE WITNESS: [Interpretation] Primarily Mr. Gashi. Mr. Mrkalj
6 and Mrs. Klein were our associates with whom I could have been in contact
7 otherwise, whereas Mr. Gashi and Mr. Hayden left Zagreb the following
8 day, and they were the ones I spoke to most.
9 JUDGE ORIE: But the other two were present when Mr. Gashi told
10 you about the meeting. Is that correctly understood?
11 THE WITNESS: [Interpretation] All four of them were present at
12 the meeting, plus two more associates of the Croatian Helsinki Committee
13 who stayed back in Zagreb
14 JUDGE ORIE: Yes. So you were seven people altogether.
15 THE WITNESS: [Interpretation] Seven, yes. Yes, correct.
16 JUDGE ORIE: Now, when Mr. Gashi told you about this meeting and
17 what had happened, did any of the others who were present at the time
18 and, as you said, you thought they had been present during this meeting
19 with Mr. Cermak, as well, did they ever intervene or correct Mr. Gashi in
20 what he told you?
21 THE WITNESS: [Interpretation] Of course, I don't remember all the
22 details. But basically the difference was that Mr. Mrkalj, our director,
23 Mr. Petar Mrkalj believed that Mr. Gashi portrayed the atmosphere at the
24 meeting in a more sanitized way because Mr. Mrkalj had felt the meeting
25 was more uncomfortable than had been portrayed by Mr. Gashi.
1 JUDGE ORIE: Did they tell you what language was used during this
3 THE WITNESS: [Interpretation] To my knowledge, Mrs. Petra Klein
4 interpreted at all the meetings, including that one. In other words they
5 spoke English, and Ms. Petra Klein interpreted for them, that's to say
6 from English to Croatian back.
7 JUDGE ORIE: Yes, and what Mr. Cermak would have said would have
8 been translated by her, as well, as far as you know, into English again?
9 THE WITNESS: [Interpretation] Yes.
10 JUDGE ORIE: Now, may I take it that some members of -- some who
11 were present during this meeting would have directly understood the words
12 spoken by Mr. Cermak?
13 THE WITNESS: [Interpretation] Only Ms. Petra Klein understood
14 both language. Mr. Mrkalj understood Croatian and -- sorry, Mr. Gashi,
15 who is an Albanian, who understood pretty well Croatian and English, and
16 Mr. Hayden understood only English.
17 JUDGE ORIE: Yes. And when they reported to you in this meeting
18 in Zagreb
19 THE WITNESS: [Interpretation] English.
20 JUDGE ORIE: And Mr. --
21 THE WITNESS: [Interpretation] Mrs. Klein was interpreting for
22 Mr. Mrkalj with -- through Chuchutage by whispering into his ear.
23 JUDGE ORIE: But do I then understand that Mr. Gashi, who
24 reported to you, had a reasonable knowledge of the Croatian language
25 which allowed him to directly understand what Mr. Cermak may have said in
1 Knin, and that he reported to you in English? You understand fairly well
2 English, may I take it? I see you nodding yes, which is now on the
3 record. Which was, at the same time, translated into Croatian for those
4 who didn't understand English.
5 THE WITNESS: [Interpretation] It was only Mr. Mrkalj who did not
6 understand English at this meeting that we had, whereas Mr. Gashi spoke
7 English for the sake of Mr. Hayden.
8 JUDGE ORIE: Yes. Now I leave it in the hands of Ms. Frolich
9 to -- if she wishes to do so, to ask further questions what exactly was
10 reported in relation to that meeting that had taken place in Knin.
11 Please proceed, Ms. Frolich.
12 MS. FROLICH: Thank you, Mr. President.
13 Q. So, Professor Puhovski, do you recall what was said to you as --
14 what was reported to you as said in the meeting with General Cermak?
15 A. Basically, Mr. Gashi said that they had been received well and
16 that Mr. Cermak either tried to minimise what they presented as the data
17 or suspicions about crime having been committed; whereas Mr. Mrkalj did
18 not believe that they were particularly well received and that Mr. Cermak
19 said things which Petar Mrkalj said at the time were not true.
20 I repeat, Mr. Gashi was quite cautious at the time. He believed
21 that Mr. Cermak stated that he had that knowledge, that he knew what was
22 going on, and at the end he said that he would make sure that such things
23 did not happen anymore and that he would make sure that investigations
24 are -- were carried out into the matter, whereas the opinion of
25 Mr. Mrkalj was that this was purely a phrase to finish off the meeting.
1 Q. Would be able to recall any exact words or phrases that were
2 spoken in that meeting and that were relayed to you, and on what subject
3 matter specifically?
4 A. Unfortunately, so many years later, I can't recall the exact
5 words. What I can recall is that the discussion had to do with the
6 preliminary information we had at the -- our disposal at the time, and
7 these were several dozens of people killed or missing. We also discussed
8 the fact that the situations involving first looting and then torching
10 Q. Do you --
11 JUDGE ORIE: Ms. Frolich, I see -- you told us in your previous
12 answer that you received the report on whether Mr. Cermak had knowledge
13 of what was going on, and in the next sentence you used the phrase that
14 he would take care that such things would not further happen.
15 Could you be more concrete as what you referred to, what was
16 going on, and what such things were?
17 THE WITNESS: [Interpretation] It was beyond dispute when
18 everybody's concerned that after Operation Storm, the instances of
19 looting and torching occurred. What was being discussed, and it had to
20 do with the future, in the conversation with Mr. Cermak was that further
21 looting and torching would be prevented. Nobody even expected it
22 necessary to speak of the need to prevent further murders because nobody
23 expected that murders would be committed in the future. Whatever had to
24 do with the future had to do with - to put it this way - discipline, the
25 prevention of individuals going out into villages, looting and torching.
1 This is what the part of the conversation which had to do with the future
2 dealt with.
3 JUDGE ORIE: May I take it where in your next answer you talked
4 about murders, looting and torching, that only looting and torching were
5 reported to you as having been the subject of discussion in Knin, whereas
6 the murder was not dealt with in the expectation that there would be no
7 further murders? Is that correctly understood.
8 THE WITNESS: [Interpretation] When discussing the future. Based
9 on the report I received, Mr. Cermak practically refused to speak of
10 murders, in plural, and he could not even be saying that such things
11 would not happen anymore because he said that such things had not
12 happened. There were several isolated instances of it, and he could not
13 have been talking about such things not happening again.
14 What was being discussed was the looting and torching, and this
15 was something that was discussed in the context of the future. This is
16 something that both Mr. Gashi and Mr. Mrkalj told me, which was that
17 Mr. Cermak said that the information about the larger numbers of
18 civilians having been killed were not true. Once he reacted in this way,
19 he responded to the information they gave him in this way, they could not
20 have ensued any more discussions on this point.
21 JUDGE ORIE: Ms. Frolich, I'm looking at the clock. Would this
22 be time for a break or ...
23 MS. FROLICH: Yes, Mr. President. This would be a good time.
24 Thank you.
25 JUDGE ORIE: We have a break, and we resume at 6.00.
1 --- Recess taken at 5.41 p.m.
2 --- On resuming at 6.04 p.m.
3 JUDGE ORIE: I briefly come back to the small portion of the
4 video that was shown by Ms. Higgins. We have no complete transcript,
5 neither in English, also not in French, and I don't know to what extent
6 it was translated into B/C/S, although the original words spoken were in
7 B/C/S, so that might not cause any problem.
8 Now, the main purpose of the exercise, Ms. Higgins, was that
9 after we played the video as it is in evidence where we have English
10 subtitles, where we have the words spoken in B/C/S, that the main purpose
11 of the exercise was to show that the images shown in the later video,
12 that they were suggestive and unsourced, and that is the only thing. So
13 under those circumstances, the Chamber could exceptionally accept that we
14 do not start a huge exercise in trying to reconstruct everything to have,
15 then, everything on the record, whereas the purpose was mainly to show
16 something, rather than to have full translations, you do not add anything
17 in evidence, so therefore, I suggested that with the consent of the
18 parties that we proceed, and we'll not put an additional burden on those
19 who are transcribing and interpreting for us.
20 MS. HIGGINS: I'm very grateful, Your Honour.
21 JUDGE ORIE: Yes, Ms. Frolich.
22 MS. FROLICH: Thank you, Mr. President. I just wanted to point
23 out that we did attach both B/C/S and English translations to the 92 ter
24 motion portions that related to the film.
25 JUDGE ORIE: Yes. So if someone wants to look at it, there it
1 is. But, at the same time, under normal circumstances, the transcript of
2 the hearing should be complete, as well, and this is an exceptional
3 circumstance under which we are a bit more liberal.
4 Please proceed.
5 MS. FROLICH: Thank you, Mr. President.
6 With the leave of the Chamber, I would refer to the portions of
7 the supplemental information sheet that the witness -- that the witness
8 gave, signed yesterday, 11th February, paragraphs 19 and 20 of the
9 supplemental information sheet, which refer to pages 82 and 83 of the
10 Croatian Helsinki Committee report.
11 Q. Professor Puhovski, do you recall being shown quotes made by
12 General Cermak in the report when this note was being put together?
13 MS. HIGGINS: Your Honour.
14 JUDGE ORIE: Ms. Higgins.
15 MS. HIGGINS: Your Honour, I would submit this is a clear example
16 of where there's reference to the words spoken by Mr. Cermak, where we
17 see Cermak denied, and you can then see footnote 3 deals with an
18 interview with Mr. Cermak, which in my submission clearly falls within
19 Your Honours' ruling.
20 JUDGE ORIE: Yes. Whenever in the report or -- of course, I
21 don't think -- we do not have the -- you're referring to the
22 supplementary -- let me just have a look. One second.
23 Yes, we have the note in evidence but not -- not in evidence but
24 marked for identification. You have not resolved yet which version
25 you're familiar with.
1 MS. HIGGINS: Your Honour, I have. I informed Ms. Frolich on the
2 break that I objected to paragraphs 19 and 20, which seem to me to fall
3 within Your Honours' ruling because they relate directly to comments made
4 by Mr. Cermak, and I attempted to strike out those portions of the report
5 for the sake of clarity, my suggestion being that paragraph 82 falls
6 away, as does footnote 3. But I seek Your Honours' guidance in relation
7 to that as there was no agreement.
8 JUDGE ORIE: Yes, I have to look at page 82, whether that's what
9 we see there. Is that this same meeting because it's new to me, the
10 supplemental information sheet; I have not even had time to read it.
11 Page 82 of the report would be ...
12 MS. HIGGINS: If it assists Your Honour, it refers to a visit by
13 the international commission, the IHF, and it's my understanding that
14 there was only ever one, so I assumed it was the same --
15 JUDGE ORIE: To the extent that a foundation was to be laid as to
16 who was where and what is the source of knowledge of this witness, that
17 would be the same for what we did before the break.
18 MS. HIGGINS: As I understand, Your Honour --
19 JUDGE ORIE: Yes, if you could please --
20 MS. HIGGINS: -- that was covered by this witness, and in fact
21 what Ms. Frolich is now doing is showing him or attempting to show him
22 the statements which were made by Mr. Cermak, which, of course, does fall
23 within Your Honours' ruling because it refers to what Mr. Cermak was
24 alleged to have said at the end of that paragraph.
25 JUDGE ORIE: Yes. So we first have to establish a basis for that
1 before we continue. You shouldn't ask about a comment unless there's a
2 basis for anything to comment on, and we do not take that from the
3 report, but you have to elicit this viva voce, Ms. Frolich.
4 That's the issue you wanted to raise, Ms. Higgins.
5 MS. FROLICH: May I -- sorry, may I proceed?
6 JUDGE ORIE: Yes. I was just seeking a clarification.
7 MS. HIGGINS: I'm sorry, Your Honour. I was just consulting with
8 my learned colleague.
9 JUDGE ORIE: Yes. As a matter of fact, yes, I asked whether the
10 issue you raised was that what the witness has told us until now about
11 the subject of conversation, that this is not covered by that, and that,
12 therefore, has no foundation for any comment.
13 MS. HIGGINS: Exactly, Your Honour.
14 JUDGE ORIE: Ms. Frolich, is it clear to you?
15 MS. FROLICH: Yes, thank you, Mr. President.
16 JUDGE ORIE: And I wondered whether you were still discussing
17 with Mr. Kay the matter.
18 Yes, please proceed.
19 MS. FROLICH: Thank you, Mr. President. Just one question to the
21 Q. Do you know -- have you heard of any specific quotes that General
22 Cermak in a meeting that we have discussed before the break that took
23 place with the members of the International Helsinki Federation and the
24 Croatian Helsinki
25 JUDGE ORIE: Ms. Higgins.
1 MS. HIGGINS: I'm sorry, Your Honour, but the witness was asked
2 about what he recalled about that meeting, and he has given evidence
3 about it. We're now coming back to try and do it another way, to come
4 back to the statements which have been up on the screen and called up, as
5 I understand. I object to this question, Your Honour.
6 JUDGE ORIE: Yes. We should take it from the screen at this
7 moment, and in one or two questions you might not have covered
8 everything. You can ask Mr. Puhovski whether he has any further
9 recollection of the discussions and any further details.
10 MS. FROLICH: Thank you, Mr. President. I will do so.
11 Q. Professor Puhovski, in addition to everything that you have told
12 us so far about this meeting, do you have any additional details about
14 A. I cannot recall any other details, save for the formulation we
15 remembered and that we all referred to when the drills of smoke were
16 being mentioned. The standard response was that people were burning
17 weed. It became such a standard phrase that was also included in the
18 report, and that seems to jog my memory. That is the only specific
19 formulation I am able to recall.
20 Q. Thank you, Professor Puhovski. I will move on to another topic.
21 JUDGE ORIE: Could we seek, Ms. Frolich.
22 Mr. Puhovski, what you just said, did you learn that in that same
23 conversation, at that same moment, or was there -- do you remember that
24 before the break we went in quite some detail through what was reported
25 to you in Zagreb
1 Now, what you just said, was that part of this reporting during
2 this meeting, or did you learn that in any other way?
3 THE WITNESS: [Interpretation] That phrase was uttered by
4 Mr. Petar Mrkalj upon his return from Knin, when we talked just prior to
5 the meeting of the seven of us. Later on, he repeated it on several
6 occasions but not during the meeting itself. I spoke with Mr. Mrkalj
7 immediately upon his return from Knin before the meeting when the seven
8 of us met.
9 JUDGE ORIE: So the others did not -- were not witnessing that
10 conversation. It was just you and Mr. Mrkalj?
11 THE WITNESS: [Interpretation] Yes.
12 JUDGE ORIE: And that was a conversation which was held in the
13 Croatian language?
14 THE WITNESS: [Interpretation] Yes.
15 JUDGE ORIE: Please proceed, Ms. Frolich.
16 MS. FROLICH: Thank you, Mr. President.
17 Q. Professor Puhovski, earlier on in your testimony you mentioned
18 that previous versions of the report had pictures in it, photographs.
19 Why were these pictures not in the new -- in the book version of the
21 A. Because the price of printing such a book would be 25 to 30
22 percent more, and we did not have such funds.
23 MS. FROLICH: Now, Mr. Registrar, could we have 65 ter 7151.
24 Mr. President, for purpose of reference, this is part of a larger
25 65 ter number that my colleague is calling up. That is the version of
1 the report from 1999, the report Military Operation Storm and Its
2 Aftermath. I selected just a few pages.
3 Q. Do you recognise this photograph, Professor Puhovski?
4 A. Yes, I do.
5 MS. FROLICH: Could we move on to pages 2 and 3 of this 65 ter.
6 Q. Mr. Puhovski, could you just read the dates that are -- the
7 captions that are under the photograph that are being shown, because they
8 are in B/C/S.
9 A. The 28th of February, 1996, for the upper photograph; and the
10 16th of July, 1996, for the bottom photograph.
11 MS. FROLICH: And if we could go to next page.
12 Q. Could you read the caption under the top -- photo on the top of
13 the page.
14 A. It reads: "The police does not set fire in Donji Lapac on the
15 17th of June, 1998."
16 The lower caption says: "Srb, the 3rd of July, 1998."
17 Q. Now, I think the English translation of what you said in B/C/S --
18 it could be understand to mean something different than -- there could be
19 two potential translations of the B/C/S version.
20 Could you explain what the words that are written mean to you, so
21 that we -- they're --
22 MS. FROLICH: I apologise, they -- as a B/C/S speaker, I would
23 just like to put on the record there are two possible translations of
24 this caption. I would seek clarification from the witness.
25 THE WITNESS: [Interpretation] The people you refer to were not
1 quite literate. There should have been a comma after the word "the
2 police." This caption should actually mean that the house involved
3 belonged to the police and that it should not be set on fire. We saw
4 dozens of such photographs with signs: Do not set on fire. The first
5 word of such a phrase, that would be on a house, usually designated the
6 owner of that property, indicating that that piece of property is not
7 Serb property and that it should not be set on fire. This should
8 actually read: The police do not set it on fire. That would be the real
9 meaning, and it appeared on dozens of pieces of property shown on the
10 photographs. Some of those were extracted from our archives and
11 published by the weekly Feral and the daily Novi List.
12 MS. FROLICH:
13 Q. Did you personally ever see such signs on houses?
14 A. I did. In the spring of 1996, in the environs of Hrvatska
16 Q. For the clarity, where is Hrvatska Kostajnica?
17 A. Hrvatska Kostajnica is at the border of Croatia and
18 Bosnia-Herzegovina along the river Una, some 38 kilometres to the
19 south-east of Petrinja.
20 Q. Would this be Sector North or Sector South, Professor?
21 A. Sector North.
22 Q. Thank you.
23 MS. FROLICH: Your Honour, we are primarily interested in the
24 photos that are on these three pages, and we would like to tender the
25 photos, not the text because the text is duplicate of the text that is in
1 the report version that we are tendering.
2 JUDGE ORIE: Any objections?
3 MR. MISETIC: Your Honour, I just note for the record, I'll leave
4 it to the Chamber, but our standard objection to these, of course,
5 relates to the territory of the Split Military District. So Donji Lapac,
6 for example, wouldn't be within the territory of the Split Military
7 District, so I'm not sure of the relevance, but I'll let the Chamber
8 decide on the geography issues. Thank you.
9 JUDGE ORIE: Yes.
10 Ms. Higgins, any --
11 MS. HIGGINS: No observations, Your Honour.
12 JUDGE ORIE: Then these two pages, just for the photographs,
13 Mr. Registrar.
14 MS. FROLICH: Three.
15 JUDGE ORIE: I'm sorry.
16 MS. FROLICH: Three pages.
17 JUDGE ORIE: Three pages, yes.
18 MR. MISETIC: Your Honour, let me add one other objection, which
19 is the date would also, absent more foundation, not establish when this
20 was written on these houses, so to the extent that there's a temporal
21 restriction on the indictment, as well, it might be relevant to the
22 Chamber's consideration. Thank you.
23 JUDGE ORIE: Ms. Frolich, you told us that you are a -- you
24 speak the language. It looks to me, but please correct me if I'm wrong,
25 I'm just trying to interpret the -- if the text shown below the
1 photograph is the text to the right of what appears to be a door, then I
2 even wonder who can see whether there is a comma or whether there is no
3 comma, but -- so whether the transcript without a comma under the
4 photograph is accurate or not. I don't know, but --
5 Mr. Puhovski, if you could further ...
6 THE WITNESS: [Interpretation] As I have said, the comma was not
7 there. It usually was not used. However, the meaning of the warning was
8 clear: Do not touch. The date was because of the follow-up. We
9 revisited certain locations to establish what was going on. It turned
10 out that the houses which had such inscriptions, indeed, were not
11 touched, whereas the others were.
12 JUDGE ORIE: Mr. Registrar, the three pages with photographs.
13 THE REGISTRAR: Your Honours, 65 ter 7151 shall be given
14 Exhibit P2318. Thank you, Your Honours.
15 JUDGE ORIE: Yes. And is admitted into evidence whereas the
16 observations made, of course, will be considered as far as weight is
18 Please proceed.
19 MS. FROLICH: Thank you, Mr. President.
20 Q. Now, Mr. Puhovski, in paragraph 12 of your supplemental
21 information sheet, you mentioned that Petar Mrkalj gave an interview to
22 Feral Tribune, which was published on August 28th, 1995, setting out
23 details of crime. I suppose crimes should probably be more accurate.
24 Can you explain what sort of newspaper is Feral Tribune?
25 A. In the period that we are referring to in 1995 in Croatia,
1 basically media space was occupied by the sources and opinions close to
2 the government. There were only two editorial rooms which were known as
3 those opposed to the basic policy of the then Croatian government. It
4 was the Split
5 Feral Tribune came to be as a satirical attachment to the daily Slobodna
7 in 1989. The editors of Slobodna Dalmatia, scared by the ban, insisted
8 that the Weekly become independent. It was being published until last
9 year. Partly it was satirical, and partly it dealt with political
10 analysis. It was a rather strange mix. One could see very sharply
11 phrased jokes about the Croatian government as well as about certain
12 other public figures that those from the Feral Tribune did not like,
13 including myself on occasion. The other half of the weekly would be
14 dedicated to interviews and analyses. In the years of 1994, 1995, 1996,
15 it was the only medium where one could come across such views with the
16 exception of the other paper, which was the daily, Novi List.
17 MS. FROLICH: Could we have 65 ter 7148 on screen, please.
18 JUDGE ORIE: Ms. Frolich, I'm a bit confused. You earlier said
19 that there were only two newspapers, the Feral Tribune and the Rijeka
20 weekly Novi
21 government, and later on you referred to the daily Novi List. Were you
22 referring to the same?
23 THE WITNESS: [Interpretation] I think on both occasions I said
24 that Novi List is a daily. It's been a daily since 1903. Perhaps I may
25 have misspoken. In any case, Novi List is a daily and has always been.
1 Feral Tribune, between 1990 and 2008, was always a weekly.
2 JUDGE ORIE: Yes. I just wanted to make sure that I didn't miss
4 Please proceed.
5 MS. FROLICH: Thank you, Mr. President.
6 Q. Professor Puhovski, this is an article in front of you, and the
7 title is: It is burning, it is burning; translated as: Dear doctor.
8 Should be: My doctor, I believe.
9 Is this the article that you mention in your statement that was
10 given by -- this was interview with Petar Mrkalj?
11 A. This is the interview. At the time in August 1995, we agreed
12 that we would try to the extent possible to make statements for the
13 public. Colleague Pilso [phoen] published an article in Novi List. Ivan
14 Zvonimir Cicak and Ivo Banac published an analysis in Feral Tribune a
15 week earlier.
16 Next, this interview with Mr. Petar Mrkalj was published. He was
17 the executive director of the Croatian Helsinki Committee. A week later,
18 my paper for the London War Report was published concerning the events in
19 the so-called Krajina. This was an attempt on our part of the Croatian
20 Helsinki Committee to use the three papers that we at our disposal to
21 inform the public reading these papers about the information that we had
22 come by.
23 Q. Are you familiar with the way this interview took place and what
24 was said during this interview that led to this article?
25 A. I know that Mr. Mrkalj had a long conversation with the
1 journalist for Feral, Vjeran Grkovic, and I personally witnessed a
2 telephone conversation where Petar Mrkalj had to fight word for word the
3 interview being shortened because he wanted the interview to be published
4 as extensively as possible.
5 Mr. Grkovic on his part, the journalist, kept saying that it was
6 impossible for him to include everything that Mr. Mrkalj had said. It
7 was a half-hour conversation where what was discussed what should be left
8 out and what should be included in the interview. This conversation
9 preceded the printing of the interview where that's to say the published
10 version finally carried only a third of what Mr. Mrkalj had stated in the
11 original interview. This is according to what Mr. Mrkalj told me
13 Q. Do you know what was discussed specifically during this
15 A. It had to do with what Mr. Mrkalj came to know during his visit
16 to Knin with the mission in the aftermath of Operation Storm.
17 Q. Thank you.
18 MS. FROLICH: Your Honour, could this document be admitted into
20 JUDGE ORIE: Ms. Higgins.
21 MS. HIGGINS: Your Honour, I object to the admission of this
22 document into evidence on the following bases.
23 Firstly, the interviewee, Petar Mrkalj, is deceased. Secondly,
24 the reporter himself is not going to be called in these proceedings, and
25 there is no ability to test the accuracy of this media report. This
1 witness has only been able to speak to it in terms of being familiar with
2 a conversation he heard about keeping its length, and what he said about
3 it can be gleaned from a mere reading of the document. Furthermore, it
4 contains content relating to the acts and conduct allegedly of Mr. Cermak
5 at page 3 of this media article.
6 It's for those reasons that I object, Your Honour.
7 JUDGE ORIE: Ms. Frolich.
8 [Trial Chamber confers]
9 MR. MISETIC: Mr. President.
10 JUDGE ORIE: I was too quick, Mr. Misetic. I should have given
11 you an opportunity to -- first.
12 MR. MISETIC: I just would ask from the perspective of the
13 Gotovina Defence if the exhibit could be MFI'd until after
14 cross-examination, and then I would be willing to put forward further
16 MS. FROLICH: There are no objections to the document being MFI'd
17 at this moment, Mr. President.
18 JUDGE ORIE: Then the Chamber will ask for a number to be
19 assigned and will defer its decision on admission.
20 Mr. Registrar.
21 THE REGISTRAR: Your Honours, this document shall be given
22 Exhibit P2319, marked for identification. Thank you, Your Honours.
23 JUDGE ORIE: And it keeps that status for the time being.
24 Please proceed.
25 MS. FROLICH: Thank you, Mr. President.
1 Could we have 65 ter 7150.
2 Q. And, Professor Puhovski, you mention in paragraph 12 of your
3 supplemental information sheet that you published an account of crimes
4 during Storm in British publication War Report.
5 A. That's correct. It was subsequently translated and carried in
6 Feral Tribune.
7 Q. The document that is being shown to you on the screen, is this
8 the -- the report that you published -- the essay that you published in
9 the War Report?
10 A. Correct.
11 Q. Now, if we could scroll to the bottom of this first page, and if
12 maybe it can be enlarged in the original. It says: War Report,
13 May 1995.
14 Could you explain this date, Professor Puhovski.
15 A. This was a typo, just as the 1008 was, because at pages 2 and 3,
16 one can see that it was the August issue. Of course, nobody could know
17 what would happen back in May 1995. They must have reprinted the heading
18 or the cover page from the May issue.
19 Q. Thank you.
20 MS. FROLICH: Your Honour, could this document be admitted into
22 JUDGE ORIE: Any objections.
23 MS. HIGGINS: No objection.
24 JUDGE ORIE: Is there any dispute about whether we're talking
25 about July or August? There is no dispute about that, so therefore you
1 could have even agreed on it with the difference.
2 MS. FROLICH: I wanted to make it perfectly clear, Your Honour.
3 JUDGE ORIE: Yes. Mr. Registrar.
4 THE REGISTRAR: Your Honours, this document shall be given
5 Exhibit P2320. Thank you, Your Honours.
6 JUDGE ORIE: P2320 is admitted into evidence.
7 Please proceed.
8 MS. FROLICH: Thank you.
9 Q. Professor Puhovski, I would like to turn your attention now to
10 the documentary film Storm Over Krajina, which you mentioned in your
11 statements, and ask you who were the authors or the author and producer
12 of this video, documentary film?
13 A. The author was Bozo Knezovic and producer was my brother, Nenad
15 Q. Can you explain the circumstances in which you were asked to
16 participate in the making of this documentary?
17 A. Mr. Bozo Knezovic, who I had known for many years, back at the
18 time when he worked for the TV, asked the Croatian Helsinki Committee to
19 provide him with some letters or reports we had in relation to the
20 situation in Grubori in 1995. At the meeting of the executive committee,
21 we decided that we could give that in agreement with the persons who were
22 involved in all of that.
23 I remained in touch with Bozo Knezovic thereafter when he was
24 preparing the material for his film, when he was in touch with people who
25 could provide him with the whole story that he needed to make the
2 Q. Did you ever see the footage that was to be used for the film
3 before you were interviewed for the film?
4 A. I saw the portion filmed by Bozo Knezovic himself for this
5 occasion, and I didn't see the copy that was taken over from the Croatian
6 TV Yutel [Realtime transcript read in error, "Utal"] and the TV of
7 Republika Srpska because we did not think it necessary.
8 Q. Did you see the film in its entirety after it was finished?
9 A. May I just make a correction. Yutel was misspelled here. It's
10 spelled with a Y-u-t-e-l.
11 I saw the film when it was finished. I watched it twice.
12 Q. And questions posed to you in the interview, when you viewed the
13 entire film did you find that the statements that you made were taken out
14 of context in relation to the footage that was shown in the film?
15 A. No.
16 MS. FROLICH: I would now like to show several segments of
17 65 ter 7147, which is the documentary film, Storm Over Krajina. If we
18 could watch the first segment.
19 [Videotape played]
20 "Male Voice 1: I call to leave their towns and settlements into
21 uncertainty but, in accordance with the Croatian constitution and laws,
22 to become loyal citizens of the Republic of Croatia
23 Male Voice 2: Since the morning hours, the Croatian army has
24 been providing Serbian civilians with food, milk, and juices ..."
25 JUDGE ORIE: Could we stop.
1 Ms. Frolich, I hear from the French booth that they were not
2 provided with a transcript, and it's almost impossible to interpret from
3 a running script on the screen. The procedure in this courtroom is that
4 one of the French interpreters follows whether what is seen as a
5 transcript is accurate and that the other one interprets from the written
6 text because it is impossible to follow the speed of speech in the spoken
7 text. Have you provided the booth?
8 MS. FROLICH: My case manager informs me that we indeed provided
9 the booth with the transcripts in B/C/S and in English.
10 JUDGE ORIE: Then I switch to the French booth again.
11 The French booth is trying to find it.
12 THE INTERPRETER: Can Ms. Frolich tell the interpreters where
13 they should start reading from in the transcript.
14 MS. FROLICH: Very well. Transcript page 13, line 9 in English,
15 and page 12, line 17 in B/C/S.
16 JUDGE ORIE: [Interpretation] [No interpretation]
17 MS. FROLICH: Thank you, Mr. President.
18 JUDGE ORIE: Please proceed, Ms. Frolich.
19 Perhaps we'd better restart.
20 [Videotape played]
21 "Male Voice 1: I call on the citizens of Serb nationality not to
22 leave their towns and settlements into uncertainty but, in accordance
23 with the Croatian constitution and laws, to become loyal citizens of the
24 Republic of Croatia
25 Male Voice 2: Since the morning hours, the Croatian army has
1 been providing Serb civilians with food, milk, and juices. We are here
2 to offer help for almost 1.000 people. We have enormous columns here.
3 The guys have been working from the early morning hours until 7.00 in
4 this heat. We distribute a lot of food here. We are not stingy, no.
5 One can see that they feel sorry and they don't know where to go. Where
6 are you going? We don't know ourselves. What do we know? We know
8 Male Voice 1: I don't know what to tell you.
9 Zarko Puhovski: What left a bitter taste were the pathetic
10 attempts to create a picture that all after that has happened the Croats
11 behaved better than any other army that we know, that there were no
12 incidents, that everybody behaved decently towards these refugees or
13 Chetniks or female supporters of Chetniks, more decently than they
14 deserved, which of course was not true."
15 MS. FROLICH:
16 Q. Professor Puhovski, can you please first of all clarify the
17 missing word in the first line of the transcript. And you say
18 "lakurofka" [phoen] in the original. Could you explain that what means?
19 A. This is a word that was borrowed from Russian and came into being
20 in the 1920s as a critical description of the social realism in the USSR
21 where attempts were made at embellishing the reality in the media. So
22 they used the term "varnish." They would varnish like a car the whole
23 picture to make it look nicer. It had to do with the campaign, the goal
24 of which was to portray a picture of what was going on in the course of
25 the operation to show that everything was done in the most humane way
1 possible. This was not the whole truth. It was only a part of the
2 truth, and its purpose was to suppress some of what was going on and some
3 of what we, unfortunately, in the Croatian Helsinki Committee came to
4 know. We were practically bombarded by information that was contrary to
5 that presented.
6 Q. Could you provide a bit more details on the basis for your
7 comment. What specific basis did you have for -- can you give us a few
8 examples for saying that things were represented in a better light?
9 A. First of all, the facts about which this report talks, that there
10 was a series of violations of human rights, murder, looting, et cetera.
11 Secondly, the facts that later on emerged in -- abroad and in Croatia
12 which indicated that there were attacks against the column which had also
13 been stoned, et cetera, and that the people who were part of the column
14 were stopped, even physically assaulted, despite the fact that the
15 Croatian military and police forces escorted the column.
16 Q. As for things being represented differently, can you give us a
17 few examples as to that part of your answer or, rather, who was
18 misrepresenting things, if that's what you were saying.
19 A. The Croatian media, specifically the Croatian television, some of
20 whose footage we were able to see here. In the same film but in the
21 sequence several minutes earlier, the statement of a known journalist was
22 quoted, Nenad Ivankovic, who said that the Croatian army had exhibited a
23 humaneness that had previously been unseen, and this is something that
24 was not experienced by any army, including the Croatian army. And, of
25 course, one could not expect the Croatian population to see the Serbs who
1 were leaving in a better light because they had perceived them as enemies
2 in view of what had happened earlier on, and I could not see why this
3 could not be reported on, even marginally, and that was the gist of my
5 Q. Thank you, Professor. Could we --
6 JUDGE ORIE: Mr. Frolich, just as a matter of fact, could you
7 tell us, that portion shown about distributing food and the column, who
8 produced that? Where does it come from?
9 THE WITNESS: [Interpretation] This was taken over from the
10 Croatian TV coverage that was broadcast in prime time news on a day in
11 August. I don't know which day precisely.
12 JUDGE ORIE: Was it in the beginning of August, at the end of
13 August? Was it --
14 THE WITNESS: [Interpretation] This was in the days when the
15 column started to leave, probably on the 5th or the 6th of August.
16 JUDGE ORIE: Thank you.
17 Please proceed.
18 MS. FROLICH: Thank you, Mr. President.
19 Could we play the next segment of the --
20 JUDGE ORIE: Mr. Misetic.
21 MR. MISETIC: Mr. President, the witness -- just to complete that
22 questioning, the witness might know where that actually was. It might be
23 relevant for your knowledge.
24 JUDGE ORIE: Could be.
25 Do you know any further details about what exactly was shown,
1 what --
2 THE WITNESS: [Interpretation] To my knowledge, this was taking
3 place in -- on the road Bosanska Stara Gradiska, on the crossing and the
4 intersection with the road leading to Belgrade. That would be the way
5 one would take to leave Bosnia
6 Gradiska is the border crossing between Croatia and Bosnia-Herzegovina.
7 I know definitely that part of the column turned that way, and I believe
8 that's where the footage was made.
9 JUDGE ORIE: Yes. If the parties could agree what -- where to
10 find this on the map what the witness just told us. Whether correct or
11 not is another matter, but at least we know how to situate the location.
12 MR. MISETIC: I think the witness is right, and it's in Sector
13 North, and I would be happy to point it out, Mr. President.
14 MS. FROLICH: No objections there.
15 JUDGE ORIE: Then I think most important is that it's situated in
16 Sector North rather than where exactly in Sector North.
17 Please proceed.
18 MS. FROLICH: Could we play the next segment, please, which is
19 transcript page 14, line 10, in English and page 13, line 18, in B/C/S.
20 [Videotape played]
21 "Male voice 1: The Serbs finally left, and I wish them a happy
22 journey, and they should never come back if they like it there. They
23 should stay there. Our Croatia
24 Female Voice: All these ugly words, all the cursing, when you
25 see a small child showing the V sign, I don't know. Somebody over there
1 shouted at us gypsies.
2 Male Voice 1: What would have happened to you if you had stayed
3 in Dugi Do?
4 Female Voice: The same.
5 Zarko Puhovski: The facts showed that these people were right.
6 Hundreds of civilians were killed after the operation or during the
7 operation, but mainly after operation called Storm, and that showed that
8 these people for these different reasons or at least because of wrong
9 assumptions knew very well what might happen. However, as those small
10 auxiliary columns flowed from smaller places or towards smaller places,
11 some people did not know their geography well. They did not now how to
12 get there, where they wanted to go, and that's why in some smaller
13 settlements killings occurred but not in those large main columns."
14 Q. Professor Puhovski, when you say the facts showed that these
15 people were right, who did you mean by "these people"?
16 A. We have several images of people there, who, when asked where
17 they were going, showed a sign of the finger across their throat, meaning
18 that they were afraid of being -- of having their throats cut or hanged.
19 And I said that they were right because they believed the propaganda
20 before certain events actually transpired, and what transpired showed
21 that their assessments of what would have happened to them had they
22 stayed behind were unfortunately quite realistic.
23 Q. When we --
24 JUDGE ORIE: Ms. Frolich, could we first inquire into what the
25 origin of this portion of the video is.
1 MS. FROLICH: Yes, Mr. President.
2 Q. Professor Puhovski, do you know where this segment was taken and
3 who took it?
4 A. Croatian television. I don't know where it was filmed. I
5 believe this happened a day later, and it was also broadcast in prime
6 time news of the Croatian TV. But this report is much more correct than
7 the first one because it also shows that some of the Croatian soldiers or
8 demobilized Croatian soldiers were mocking the people who were leaving,
9 which was more reflective of the situation as it was. But I can't tell
10 you what the location is.
11 Q. When making your comments, did you rely solely on the footage
12 that was being shown to you, or was there any other basis for those
14 A. Again, every day and even at night we kept receiving written
15 reports and letters from people reporting on war crimes. It is true that
16 some of these reports were not true, but some unfortunately were. These
17 were the reports that we received in the weeks and months and years that
18 followed concerning the events triggered by Operation Storm.
19 JUDGE ORIE: Ms. Frolich, I'm looking at the clock. I'm
20 wondering -- I think your original time assessment was one hour and a
21 half, if I'm not mistaken.
22 MS. FROLICH: Yes, Mr. President. I am trying -- I was trying to
23 keep it in the limits. However, due to the objections from the Defence
24 side and due to some explanations with --
25 JUDGE ORIE: Ms. Frolich --
1 MS. FROLICH: -- taken a little more time, I would need only ten
2 more minutes to finalise.
3 JUDGE ORIE: Yes, but we can't have them now because we have to
4 conclude for the day.
5 I can imagine that a careful analysis of the time used would
6 cause you to consider not only the Defence responsible for taking more
7 time, as you said, as a matter of fact, but everyone can do this job for
9 You say you need ten more minutes. We'll consider that.
10 Defence, could I hear time estimates.
11 Ms. Higgins.
12 MS. HIGGINS: Your Honour, I estimate three hours.
13 JUDGE ORIE: Mr. Misetic.
14 MR. MISETIC: I also estimate about two sessions, Mr. President.
15 JUDGE ORIE: Mr. Mikulicic.
16 MR. MIKULICIC: Your Honour, it very much depends on the
17 cross-examination of my colleagues prior to me, but I can estimate two
18 sessions as well.
19 JUDGE ORIE: Yes. Which brings us far into next Monday.
20 Mr. Puhovski, first of all, I hope you do not take it as
21 offensive that I'm calling you Mr. Puhovski. That is because I refrain
22 from titles, position, et cetera. Everyone who appears here as witness
23 comes with the same mission; that is, to tell us the truth and nothing
25 Mr. Puhovski, what about your availability on Monday?
1 THE WITNESS: [Interpretation] If I have to be here, I will.
2 JUDGE ORIE: That's much appreciated.
3 Now, we have another matter, that we have another witness
4 scheduled for Monday as well. We'll further have to see how we organise
5 that and how much time that would take. I don't think that it will take
6 a lot of time.
7 We have competing witness, Mr. Puhovski, one especially returning
8 this Monday, although not for a long period of time. We'll further
9 consider and further discuss this matter, and it's already appreciated
10 that you make yourself available, although perhaps with some reluctance,
11 for Monday.
12 We will adjourn for the ...
13 [Trial Chamber confers]
14 JUDGE ORIE: Could you please put your earphones.
15 I was just telling that we will adjourn for the day but not until
16 after I have instructed you, Mr. Puhovski, that you should not speak with
17 anyone about the testimony, the testimony you have given already or the
18 testimony still to be given tomorrow and on Monday.
19 We will resume tomorrow morning, the 13th of February, 9.00 in
20 Courtroom II.
21 --- Whereupon the hearing adjourned at 7.02 p.m.
22 to be reconvened on Friday, the 13th day of
23 February, 2009, at 9.00 a.m.