Tribunal Criminal Tribunal for the Former Yugoslavia

Page 15798

 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.

Page 15799

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24                           [Open session]

25             THE REGISTRAR:  Your Honours, we're back in open session.

Page 15800

 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.

Page 15801

 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

20     witness.

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.  The other Defence teams joined this submission.  These

24     submissions can be found at transcript pages 15712 and 15713.

25             On the 5th of February, the Chamber informally communicated to

Page 15802

 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.  The one medical report that the Chamber received suggests

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

17     finding.

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.  Since that declaration is not a medical report, it is not

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

Page 15803

 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

Page 15804

 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

Page 15805

 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,

 9     2008.

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.

Page 15806

 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

Page 15807

 1     into private session.

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Page 15808











11  Page 15808 redacted. Private session.















Page 15809

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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

22     issue.

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

Page 15810

 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

Page 15811

 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

Page 15812

 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,

Page 15813

 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

 6     concerned?

 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.

Page 15814

 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]

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Page 15815

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 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

10     understand.

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

Page 15816

 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.

Page 15817

 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

 8     out.

 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

Page 15818

 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

 4     employed.

 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

14     context.

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

Page 15819

 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

Page 15820

 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

12     itself.

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]

Page 15821

 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.

Page 15822

 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

Page 15823

 1     HTV report, D146, which Your Honours will be familiar with, and the

 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

Page 15824

 1     Croatia," so the compilation of course can be made, and we will undertake

 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.

Page 15825

 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

Page 15826

 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.

Page 15827

 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

Page 15828

 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.

Page 15829

 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

Page 15830

 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

 8     Dublin or before any -- I mean, putting -- making it an argument before

 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

Page 15831

 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

Page 15832

 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

Page 15833

 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

 7     clear.

 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

Page 15834

 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

Page 15835

 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

Page 15836

 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?

Page 15837

 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.

Page 15838

 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

18     University.

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 Watch -- Helsinki Committee.

24        Q.   Professor Puhovski, did you give a statement to the Office of the

25     Prosecutor on the 13th and 14th June, 2007?

Page 15839

 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, and 9th/11th February, 2009, which you signed at the

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

Page 15840

 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

24     understand?

25        A.   I read them myself.

Page 15841

 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.

Page 15842

 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

 6     you.

 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

18     confirmed.

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

Page 15843

 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

 6     observations?

 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

25     Croatia in 1995.  The witness edited the Croatian Helsinki Committee

Page 15844

 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

 6     crimes.

 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

16     Storm.

17             That concludes the summary, Mr. President.

18        Q.   Professor Puhovski, could you please describe the role of the

19     Croatian Helsinki Committee in Croatia?

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

Page 15845

 1     office in Zagreb.  The office dealt with the promotion of human rights

 2     and the analysis of the situation with regard to the exercise of human

 3     rights.

 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

14     Helsinki organisation, and later on as a Croatian organisation as well.

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

21     1999.

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;

Page 15846

 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 in

 7     war.

 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 organisation, it was not allowed to

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 or abroad did the Croatian

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

22     Serbia, Bosnia-Herzegovina; there were two in Kosovo and Macedonia as

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 such as

25     the Civic Committee for Human Rights and such-like.

Page 15847

 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 Committee.  Previously, I knew him as a journalist from

11     Karlovac who was a prominent figure on the trade union scene in the last

12     years of Yugoslavia, which had experienced a sort of liberalisation, and

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, you mentioned other members of the fact-finding team.

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

Page 15848

 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

 6     missions?

 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

11     people.

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

Page 15849

 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, write an initial version of the report and submit it to

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

23     eye-witnesses.

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

Page 15850

 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

20     justified?

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 Committee.  They recruited one of our employees,

Page 15851

 1     and they wanted to get by as much information and documents we had as

 2     possible.

 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

10     right.

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?

Page 15852

 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 and

 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

 7     Zagreb.

 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,

Page 15853

 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

 6     communication.

 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

20     page.

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.

Page 15854

 1        Q.   And both were -- both versions were produced by Croatian Helsinki

 2     Committee?

 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

12     you.

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

Page 15855

 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

17     ...

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

Page 15856

 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?

Page 15857

 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.

Page 15858

 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

12     conclusion?

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

15     Croatia, who were mostly Serbs, would never return.  Croatian citizens 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.

Page 15859

 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, or persons who had approvals to reside

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

20     Croatia and the FRY.  They wanted to return to their former homes.  In

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 in the summer of 1995 would

Page 15860

 1     never return.  That is why they put those homes at the disposal of other

 2     people.

 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

15     Yugoslavia.

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

Page 15861

 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 on both sides at the time.  Some of the

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

Page 15862

 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

Page 15863

 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

Page 15864

 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.

Page 15865

 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 Federation with Croatian Helsinki Committee to

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

25     meeting.

Page 15866

 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 Federation and Petra Klein and Petar Mrkalj from

 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

15     happened?

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

Page 15867

 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

 4     pieces?

 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.

Page 15868

 1             JUDGE ORIE:  Did they tell you what language was used during this

 2     meeting?

 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, what language was used then?

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

Page 15869

 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.

Page 15870

 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

 9     continued.

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.

Page 15871

 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.

Page 15872

 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

Page 15873

 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.

Page 15874

 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

Page 15875

 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

20     witness.

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 Committee?

25             JUDGE ORIE:  Ms. Higgins.

Page 15876

 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

13     it?

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 about the conversation that took place in Knin.

Page 15877

 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

20     report?

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

Page 15878

 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

Page 15879

 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

15     Kostajnica.

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

Page 15880

 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

Page 15881

 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

17     concerned.

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,

Page 15882

 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 weekly Feral Tribune and the Rijeka daily Novi List.  The

 5     Feral Tribune came to be as a satirical attachment to the daily Slobodna

 6     Dalmatia, and it was banned as one of the last Communist regime decisions

 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 List, that were, if I understand you well, not close to the

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.

Page 15883

 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

 3     anything.

 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

Page 15884

 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

12     himself.

13        Q.   Do you know what was discussed specifically during this

14     interview?

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

19     evidence.

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

Page 15885

 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

15     argument.

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.

Page 15886

 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

21     evidence.

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

Page 15887

 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

14     Puhovski.

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

Page 15888

 1     documentary.

 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.

Page 15889

 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

Page 15890

 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

 7     nothing.

 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

Page 15891

 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

Page 15892

 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

 4     observation.

 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,

Page 15893

 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 and to go to Serbia.  Bosanska Stara

 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 is now free.

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

Page 15894

 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.

Page 15895

 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 --

Page 15896

 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

 8     himself.

 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

24     else.

25             Mr. Puhovski, what about your availability on Monday?

Page 15897

 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.