1 Friday, 26 June 2009
2 [Open session]
3 [The accused not present]
4 [Rule 54 bis hearing]
5 --- Upon commencing at 9.10 a.m.
6 JUDGE ORIE: Good morning to everyone.
7 Mr. Registrar, would you please call the case.
8 THE REGISTRAR: Good morning, Your Honours. Good morning to
9 everyone in the courtroom. This is case number IT-06-90-T, the
10 Prosecutor versus Ante Gotovina, et al.
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 Before we start the hearing, the Chamber would like to inform the
13 parties that, pursuant to Rule 15 bis (A), today's hearing will take
14 place in the absence of Judge Kinis. Judge Kinis is away for urgent
15 personal reasons, and Judge Gwaunza and I have concluded that it is in
16 the interests of justice to continue the trial of this hearing without
17 Judge Kinis, who will be present again at next week's hearing. And, of
18 course, Judge Kinis will read carefully the transcript of today's
20 We scheduled the hearing today to receive further information in
21 relation to the motion for restraining order against the Republic of
23 And, again, before we start, Mr. Misetic, one filing in this
24 context was ex parte, and as you may remember from the past in -- on an
25 issue which has at least some relation to this one, there have been ex
1 parte filings before. What is your suggestion as far as -- do we ask, do
2 we go in closed session and send out all the parties or ...
3 MR. MISETIC: I don't know what the intention of the Chamber is
4 with respect to the ex parte attachments. However, if it is going to be
5 used in court and shown for any purpose, then, yes, I would ask that it
6 remain ex parte from the Prosecution.
7 JUDGE ORIE: I -- from the Prosecution only and not from the
8 other Defence teams.
9 MR. MISETIC: That is correct.
10 [Trial Chamber and registrar confer]
11 JUDGE ORIE: Mr. Registrar reminds me that it is not that easy.
12 We have to set up a whole new LiveNote if we go into any ex parte
13 hearing. Now if just reference would be made to it and if it would not
14 be shown, just reference to documents, without giving all the details of
15 that, would that meet any objection as far as you were concerned?
16 MR. MISETIC: Well, my intention is, Mr. President, if it is just
17 reference to Mr. Ivanovic, that's fine. Other persons --
18 JUDGE ORIE: You would say any other person --
19 MR. MISETIC: Correct.
20 JUDGE ORIE: So if we are talking about a document on the which
21 the name of Mr. Ivanovic appears and what type of document it is, for
22 example, is it a letter, is it a -- is it -- well, whatever, that would
23 not meet any objections as far as you're concerned.
24 MR. MISETIC: Correct. Correct, Mr. President.
25 JUDGE ORIE: That is clear. Then we will see how matters go.
1 I'm informed that the delegation of the Republic of Croatia
2 arrived, and I would like them to be escorted into the courtroom.
3 While awaiting their arrival, it is already on the record of
4 yesterday that the accused have expressed their wish not to be present
5 today, and they are not present in this courtroom.
6 Good morning to the delegation of Croatia. This Chamber has
7 invited the parties and the Republic of Croatia
8 may have some questions for you, and in which we would receive further
9 information on an outstanding matter, the outstanding matter being the
10 defendant Ante Gotovina's motion for a restraining order against the
11 Republic of Croatia
12 Could I first invite you to introduce yourself. We received a
13 list, but, nevertheless, I would like it know who is who.
14 The head of the delegation is ...
15 MR. MARKOTIC: [Interpretation] My name is Gordan Markotic, head
16 of the Department for cooperation with international Tribunals in the
17 Ministry of Justice.
18 MR. CULE: [Interpretation] My name is Josip Cule, deputy state
19 attorney of the Republic of Croatia
20 MS. POKUPEC: [Interpretation] My name is Zeljka Pokupec, the
21 municipal state attorney in Zagreb
22 MR. MARKOTIC: [Interpretation] And the fourth member is
23 Mr. Crncec, Ivan Crncec, head of the Department for Cooperation with
24 The Hague
25 THE INTERPRETER: Could the speakers to kindly be asked to speak
1 into the microphone. Thank you.
2 JUDGE ORIE: Could I ask you to come a bit closer to your
3 microphones. There are three of you, so that's -- perhaps you could
4 adjust the microphones in such a way that we can hear everything that you
6 Mr. Misetic, you're on your feet.
7 MR. MISETIC: Yes, just for purposes of the record, Mr.
8 President, let me note that Mr. Marin Ivanovic is seated to my right this
9 morning. Si in case the Chamber has any questions. Thank you.
10 JUDGE ORIE: Yes. Let me to try to come to the core of this
11 hearing straightaway.
12 One of the issues raised by the Gotovina Defence is that the
13 Republic of Croatia
14 Mr. Ivanovic, as is put by the Gotovina Defence, enjoys functional
16 Now, this Chamber has received a letter by the Republic of
18 read in the heading, Written arguments of the Republic of Croatia
19 connection with the request of indictee Ante Gotovina that the Republic
20 of Croatia
21 Now, we find some information in it, but I could not find one
22 word spent on the issue of immunity. Could you perhaps explain the
23 position of the Republic of Croatia
24 explained in the letter that you do not object to the way in which the
25 Gotovina Defence seeks its evidence, that you do not impose any duty that
1 it should be done through state channels. It seems that you agree on
2 that. You have explained that the proceedings against Mr. Ivanovic are
3 independent from the proceedings before this court, which, the
4 Gotovina Defence deems irrelevant. You have explained that Croatia
5 state interest in proceeding against Mr. Ivanovic, which, I would say,
6 almost goes without saying, because if have you no interest in proceeding
7 against a person, you wouldn't do it. But the whole issue, which seems
8 to be the core issue here, has not been dealt with, and that is the claim
9 by the Gotovina Defence that Mr. Ivanovic enjoys functional immunity.
10 Could you explain the position of the Republic of Croatia
11 respect of what seems, to this Chamber, to be the core issue?
12 MR. MARKOTIC: [Interpretation] Since the question of immunity is
13 used by -- is viewed by us through the prism of domestic rules and
14 regulations, I would like to give the floor to the deputy state attorney,
15 Mr. Cule, who is going to explain the issue of immunity.
16 MR. CULE: [Interpretation] Thank you.
17 Your Honours, in the legislation of the Republic of Croatia
18 there are individual who is enjoy immunity. The question of immunity was
19 resolved on the basis of a number of legal provisions based on the
20 European conventions relating to diplomatic representatives and their
21 circle. The other rules and regulations of those of the Republic of
23 executive power and authority, and all these rules and regulations, the
24 Defence counsel, member of the Defence team which appear before foreign
25 courts and also before courts in the Republic of Croatia
1 kind of immunity. As far as a separate law is concerned that we have in
2 the Republic of Croatia
3 cooperation with International Criminal Courts, dated to 1996, in that
4 law, the question of immunity is mentioned and also the circle of
5 individuals enjoying immunity. According to Article 34 of that law --
6 JUDGE ORIE: Could I ask you to slow down because otherwise our
7 interpreters have problems, and we would police part of your words which
8 we'd rather not.
9 Please proceed.
10 THE INTERPRETER: Could the speaker kindly approach the
11 microphone, please. Thank you.
12 JUDGE ORIE: [Previous translation continues] ... closer to the
13 microphone, please.
14 MR. MARKOTIC: [Interpretation] Thank you, yes.
15 I'm going to quote Article 34 of the law, constitutional law,
16 that is, on cooperation with International Criminal Courts which says the
17 Judges, Prosecutor, and Registrar of the International Criminal Court in
18 the Republic of Croatia
19 for by the international right governing diplomatic representatives. So
20 there legal provision does not provide for any kind of immunity for
21 Defence counsel or members of the Defence teams. I should also like to
22 add one more thing, and that is, that as far as we know, in criminal
23 proceedings which have been initiated and are conducted in the Republic
24 of Croatia
25 immunity or called upon their right to immunity. It is customary that if
1 persons who stand accused consider that they have the right to enjoy
2 immunity, then, they must refer to that right specifically and in that
3 case, it is the competent court which will decide whether they in fact
4 will enjoy that right or not.
5 Thank you.
6 JUDGE ORIE: Thank you for that answer.
7 I immediately now address you, Mr. Misetic. From your
8 submissions, it does not appear anywhere that immunity is invoked before
9 the local court or local prosecutorial authorities.
10 MR. MISETIC: That is correct, Mr. President. We believe the
11 issue is one of jurisdiction before this court and not the court or the
12 authorities of the Republic of Croatia
13 an investigator of the Office of the Prosecutor were to be charged, our
14 response would be that I think it would be clear under Article 30 that
15 that investigator would enjoy the immunities afforded to him under
16 Article 30. The -- whether or not those immunities were granted under
17 the Croatian constitutional law would be irrelevant under the statute.
18 Those immunities would exist by virtue of a resolution of the
19 Security Council, irrespective of any laws of the Republic of Croatia
20 affirming that -- or recognizing the decision of the Security Council in
21 passing the Statute.
22 Secondly, I don't think there would be any issue that, for
23 example, if the question of immunity of an OTP investigator in Zagreb
24 were raised before a court in Zagreb
25 Tribunal from taking any measures under Rule 54, nor -- and that would in
1 effect concede that a court in Zagreb
2 Office of the Prosecutor didn't have immunity. That is a decision, I
3 believe, that would be -- fall exclusively within the realm of the
4 Tribunal to make the decision. And for that reason, we think that this
5 is an issue that can be decided right now by the Trial Chamber.
6 JUDGE ORIE: Mr. Misetic, just for argument's sake, if
7 Mr. Ivanovic would have invoked immunity before the court and it would
8 have been granted, it's just -- I'm not say it would, but let's just
9 assume, then this whole exercise would have been superfluous, isn't it?
10 MR. MISETIC: Mr. President, I think it would be superfluous to
11 seek -- quite frankly and speaking quite openly, to have sought immunity
12 from a court in Zagreb
13 all what the result of that would have been. There having been no
14 precedent established yet by the Tribunal because the issue hasn't been
15 decided, it would result essentially in needless delays, and ultimately
16 this decision is going to wind up with the Chamber one way or the other.
17 There are also, quite frankly, other considerations because the
18 matter would essentially have to be referred to someone to consider
19 whether there is immunity. When issues like this have arisen in the
20 past -- and I will give you one example. When Mr. Rajcic was called to
21 testify in the proceeding in Zagreb
22 testifying by some decision of this Chamber, if the Court will recall.
23 What the judge in Zagreb
24 there was any -- if you wish to call it immunity or prohibition on
25 Mr. Rajcic, and the judge referred it to Mr. Markotic, who then referred
1 back to you, essentially, to ask whether there is any impediment to
2 seeking Mr. Rajcic's testimony in Zagreb.
3 Essentially, that is the same thing that would happen here. We
4 have cut the process short, and ask directly that the Chamber resolve the
5 matter, because if we want to be realistic about what is going to happen
6 this Zagreb
7 no decision yet at the international level resolving this issue.
8 Thank you.
9 JUDGE ORIE: Thank you, Mr. Misetic.
10 You say we couldn't expect anything; therefore, we ask this
11 Chamber to interfere in internal matters without even having tried to
12 gain the -- what you consider to be the appropriate decision by a local
14 MR. MISETIC: I don't consider it an internal matter, first of
15 all, Mr. President. I consider it a matter of this Tribunal. We are a
16 Defence team not internally within the Republic of Croatia
17 internationally as part of this institution.
18 JUDGE ORIE: Yes. But the proceedings are --
19 MR. MISETIC: The proceedings --
20 JUDGE ORIE: [Overlapping speakers] ...
21 MR. MISETIC: They may be, indeed, domestic proceedings, but
22 nevertheless, I am articulating what I believe the powers are of the
23 Chamber under Rule 54.
24 Now, to borrow a phrase of yours, Mr. President, if it's that we
25 have to do a ritual dance of going through hoops and then getting our
1 rejection from the authorities in Zagreb and then coming back to you
2 within the next four months, obviously we will do that ritual dance. But
3 I suspect that this issue is going to be back on the Chamber's plate at
4 some point.
5 JUDGE ORIE: Thank you, Mr. Misetic.
6 You have referred to domestic law, whereas, apparently,
7 Mr. Misetic relies on international obligations under the Statute. Have
8 you considered whether there are any obligations that derive from the
9 Statute, which would prevail over or be inconsistent with or would
10 contradict the position of the Republic of Croatia
11 have no immunity, no functional immunity?
12 MR. CULE: [Interpretation] I'd like to say that as far as we are
13 concerned, the situation in the Republic of Croatia
14 clear --
15 MR. MARKOTIC: [Interpretation] Your Honours, might I interrupt.
16 My colleague, while Mr. Cule was talking, it said Mr. Crncec and then
17 Markotic. I would like to say for the record that everything that was
18 said relating to immunity was Mr. Cule speaking. So could that be put
19 right in the record.
20 JUDGE ORIE: Yes. The record usually is revised at -- at the end
21 of the day. There are -- quite understandable, there are always small
22 inaccuracies, but it is good that you have drawn the attention to this
24 Yes, Mr. Cule, please proceed, proceed.
25 MR. CULE: [Interpretation] Yes, I will proceed. It is the
1 criminal section and crimes committed in the territory of the Republic of
3 in other law -- procedural law.
4 As far as trials before the International Criminal Courts are
5 concerned, these laws are not applied in the Republic of Croatia
6 I'd just like to mention that the question of application, that is to
7 say, the application of the International Criminal Courts in a way has
8 already been discussed before the International Criminal Court and the
9 Chamber there which decided about what rules were to be applied in the
10 case of the transfer of criminal proceedings or trials in the Ademi/Norac
11 trial to local Courts. And in that case it was established that the
12 legislation of the Republic of Croatia
13 standards and satisfies all standards of the domestic rules -- will be
14 applied in those legal proceedings. When we turn towards domestic rules
15 and regulations, all I can say is that --
16 All I can say is what I said at the beginning. And that is that
17 domestic laws and rules and regulations do provide for the possibility of
18 allowing Defence counsel or members of Defence teams to have functional
19 immunity. And that is in conformity and consistent with the law
20 governing criminal proceedings as well as the constitutional law on
21 cooperation with International Criminal Tribunals.
22 JUDGE ORIE: Are you aware that the legal advisor of the
23 Secretary-General has delivered an opinion in relation to the
24 Rwanda Tribunal, which clearly expresses that Defence counsel and staff
25 employed by Defence counsel enjoy at least some kind of immunity?
1 MR. CULE: [Interpretation] May we take a moment, please.
2 JUDGE ORIE: Yes.
3 MR. CULE: [Interpretation] This issue was raised. However, as
4 immunity is concerned, that would have to be extended to encompass the
5 commission of crimes committed in the territory of the Republic of
7 in such a case, such an extension could not be made.
8 JUDGE ORIE: When you're talking about the indictment, you're
9 talking about the indictment brought against Mr. Ivanovic? Or any other
11 MR. CULE: [Interpretation] Yes. The indictments raised against
12 the accused Ivanovic, Sare, and Kretic.
13 JUDGE ORIE: What you say is if there's immunity, it does not
14 apply to anything that happened on the territory of Croatia
15 correctly understood?
16 MR. CULE: [Interpretation] Perhaps a better formulation would be
17 to say that it would be impossible to apply immunity in relation to
18 crimes committed in the territory of the Republic of Croatia
19 outside the circle I referred to previously are concerned.
20 JUDGE ORIE: You say, Wherever they may have immunity, not on our
22 Let me then ask you the following question. Most of the job to
23 be done in preparing for a Defence would have to be done on the territory
24 of Croatia
25 materials, et cetera.
1 Now, I understood that your argument would effectively deprive
2 the Defence if they would have immunity, because that was the assumption
3 starting point of your answer, whether you agree with that or not, it
4 would be totally ineffective because the area where the job for which
5 functional immunity, if it exists, should be done would be excluded from
6 the scope of the functional immunity.
7 MR. CULE: [Interpretation] I do not believe that would be the
8 right conclusion, given that Defence, in the territory of the Republic of
10 necessary for the proceedings, but I do not believe that they should be
11 allowed to commit crimes. If there was a crime committed, the state
12 attorney's office, in keeping with the existing regulation, needs to
13 prosecute the perpetrators of such crimes ex officio. The difference is
14 that in that, that Defence has the right to undertake a number of
15 measures that they find necessary without committing crimes, especially
16 those crimes which are prosecuted ex officio. In that case, or in such a
17 case the state prosecutor's office in keeping with the law is duty-bound
18 to prosecute the perpetrators of such crimes.
19 JUDGE ORIE: Wouldn't there be, an international obligation to
20 seek the immunity to be lifted, if it exists? And is that considered,
21 which would open the way to a prosecution without a potential violation
22 of any obligation to respect immunity? Again, it is for argument's sake.
23 This Chamber, at this moment, does not express a view on whether immunity
24 attaches to the function of Mr. Ivanovic. But just for argument's sake.
25 MR. CULE: [Interpretation] In my introduction I said that
1 according to the regulations in place in the Republic of Croatia
2 persons do not enjoy immunity. Therefore, the state prosecutor's office
3 was not duty-bound to deal with the issue of taking that immunity away.
4 JUDGE ORIE: Yes. Now, would -- I have drawn your attention to
5 the fact that at least the legal advisor of the Secretary-General -- when
6 I say legal advisor, I think it's wrong; that's not exactly his position.
7 But someone in the office for legal affairs within the headquarters of
8 the United Nations, Mr. Johnson. He comes to a different conclusion, and
9 if we look at -- for example, the agreement on the privileges and
10 immunities of the International Criminal Court, there, clearly, we find
11 rules on immunity for Defence counsel. And, of course, one of the
12 arguments invoked by the Gotovina Defence is that it would be in line
13 with Article 30 of the Statute of this Tribunal that Defence falls within
14 the scope of Article 30. And we're talking about the Statute with this
15 Security Council resolution.
16 I take it that you have read the submissions made by the
17 Gotovina Defence in this respect?
18 MR. CULE: [Interpretation] My learned friend Mr. Crncec will
19 respond to that.
20 MR. CRNCEC: [Interpretation] Your Honours, I wanted to point out
21 the fact that in keeping with the Article 30 of the Statute invoked by
22 the Defence, which refers to the immunity of the members of Defence teams
23 before International Criminal Tribunals and the ICTY, that is a different
24 and separate legal argument in relation to the agreement on the
25 privileges and immunities which applies to the ICC. Therefore, we
1 believe the Statute of the ICTY is relevant in this specific case.
2 JUDGE ORIE: Yes. But the interpretation of legal instruments is
3 often done in a comparative way as well. The Defence states that it is
4 on the basis of an equality of arms that you can't give the Prosecution
5 immunity and deprive Defence from such immunity. And they rely on an
6 opinion, I would say, an opinion the ICTR has asked for, the president of
7 the ICTR has asked for in a situation similar to the ICTY.
8 So, therefore, it's a matter of interpretation of Article 30 and
9 it's not uncommon that you then look over the borders and for purposes of
10 interpreting Article 30 to see what opinions, authoritative opinions,
11 have been produced and how the matter is dealt with in other
12 international courts.
13 THE INTERPRETER: The microphone is off.
14 JUDGE ORIE: Could you switch it on.
15 MR. CRNCEC: [Interpretation] Okay.
16 I do not wish to go into the interpretation of various decisions
17 of the municipal court or the state attorney's office. It has to do with
18 what my learned friend Mr. Cule said before, and that is that, under the
19 constitutional law which has to do with the -- with cooperation with the
20 ICTY, we incorporated the provisions of Article 30 in that law, in
21 keeping with the provision 34 of our constitutional law and Article 30 of
22 the ICTY Statute, before Croatian national courts, including the
23 municipal court in Zagreb
24 state -- the municipal state attorney's office was not duty-bound to do
25 that ex officio. I believe that is the core of the issue.
1 We followed the letter of the constitutional law, the Statute,
2 under which the Defence does not enjoy immunity. None of them raise that
3 issue before the municipal court. The state prosecutor's office was not
4 duty-bound to act ex officio.
5 Therefore, before the municipal court in Zagreb, that issue was
6 not raised at all.
7 JUDGE ORIE: Yes. You say, We never even came to a legal debate
8 on whether immunity would apply or not because the matter was not raised?
9 MR. CRNCEC: [Interpretation] Precisely.
10 JUDGE ORIE: Mr. Misetic.
11 MR. MISETIC: May I respond to that point, Mr. President.
12 JUDGE ORIE: Yes, you may.
13 MR. MISETIC: I wish to, perhaps I failed to state earlier, to
14 not confuse two points. Mr. Ivanovic raising the issue of immunity in
15 his -- in the courts in Zagreb
16 wee would have to exhaust the legal remedies in the Republic of Croatia
17 or he would have to exhaust those remedies. If the Court in Zagreb
18 to take weeks, months, et cetera, to resolve the issue, then that delay
19 would continue. Would he have to appeal the decision to a higher court
20 in the Republic of Croatia
21 say would the issue be raised with the Trial Chamber?
22 The issue I wish to reiterate is the issue before this Chamber is
23 not Marin Ivanovic per se; it's Ante Gotovina. The issues here concern
24 Ante Gotovina's fundamental rights under Article 21 to equality of arms,
25 and it is this Court's primary jurisdiction to protect Ante Gotovina's
1 fundamental rights and to issue all orders that are necessary to do that.
2 The Courts of the Republic of Croatia
3 resolving the issue of whether Ante Gotovina has a fundamental right to
4 equality of arms under Article 21 of the Statute. So we would disagree
5 with the interpretation of the Republic of Croatia
6 Ante Gotovina's rights under Article 21 under -- is specifically
7 entrusted to the Trial Chamber under Article 20 of the Statute, and the
8 issue of Mr. Ivanovic is not an issue of Mr. Ivanovic's personal
9 immunity. It is whether Ante Gotovina's Defence team has immunity, such
10 that it can in its functions and obligations to both Mr. Gotovina and
11 this Court, can function appropriately. The delay inherent in asking a
12 court in Croatia
13 his rights would cause continuing damage to Ante Gotovina in the course
14 of these proceedings.
15 Thank you, Mr. President.
16 JUDGE ORIE: Thank you, Mr. Misetic.
17 Is there anything more at this moment to be said about the
18 substance of immunity beyond what was already submitted in writing?
19 Mr. Misetic.
20 MR. MISETIC: On the issue of just -- on the question of
21 immunity. Just to follow up one point. I don't know if it was clear and
22 I don't know -- I may have misunderstood the arguments advanced by
24 But, I believe, as a general statement, it was stated that
25 Defence counsel do not enjoy immunity as a broad statement, not just
1 ICTY. And as the Court is aware, Defence counsel at the ICC are immune
2 from Prosecution or process, I should say, on the territory of the
3 Republic of Croatia
4 of Croatia
5 laws as a blanket matter do not provide immunity for international
6 Defence counsel. It is now simply whether ICTY Defence counsel enjoy
7 that immunity, because ICC Defence counsel already do.
8 Thank you.
9 JUDGE ORIE: Now the term "immunity" seems to be a rather complex
10 legal concept.
11 Just for my information, if counsel would be called as a witness,
12 would he be under an obligation to testify about matters that he
13 confidentially discussed with any of his clients?
14 MR. CULE: [Interpretation] He would not, given that counsel of an
15 accused is part of the circle of persons who, under the law on criminal
16 procedure, are free from providing testimony, in terms of attorney/client
17 privilege. In that case, if such a person were to be called as a
18 witness, could invoke the immunity he or she enjoys as part of his role
19 as Defence counsel. That is expressly stated in one of the provisions of
20 the Law on Criminal Procedure.
21 JUDGE ORIE: Search and seizures in law firms, is there any
22 prohibition in that respect?
23 MR. CULE: [Interpretation] It is difficult for me to follow the
24 thrust of your question. But if an attorney also acts as Defence
25 counsel, there are certain regulations in keeping with the law of
1 Republic of Croatia
2 seizures can be conducted of an attorney's office or the contents of his
3 case. Such a search is not allowed in terms of documents. That would
4 constitute illegal -- illegally gained proof, and any judgement could not
5 be based on it.
6 JUDGE ORIE: Thank you for that answer.
7 MR. MISETIC: Mr. President --
8 JUDGE ORIE: I know that it is in dispute whether or not the
9 Prosecution has any standing in these proceedings.
10 MR. MISETIC: I just wish to make a point on the last point if I
12 JUDGE ORIE: Yes, if you would first do so.
13 MR. MISETIC: That is one of the fundamental issues of this
14 motion, generally speaking, Mr. President. For the record the Republic
15 of Croatia
16 the Gotovina Defence as we speak in Zagreb to go to police stations and
17 give compulsory police interviews. So this is not a theoretical
18 question, it's a real question. I have very little ability to control
19 what a person in our office may or may not reveal in the course of a
20 conversation in a police station. Those reports are being given to the
21 Office of the Prosecutor. Mr. Ivanovic is an attorney in Zagreb and was
22 compelled to give a police interview in March, which is now appended to a
23 Prosecution filing. So these issues are not simply theoretical. For the
24 record we object to them as violations of Rule 70 and Rule 97, and we
25 have continually expressed to the Republic of Croatia
1 insistence on interviewing through police measures and members of the
2 Defence is a violation of the rules of this Tribunal.
3 JUDGE ORIE: Could I first seek verification of what you just
4 told us. You say it is not just that Mr. Ivanovic is proceeded against
5 at this moment, but there are compulsory police interviews with more
6 members of your team.
7 Could I first seek verification whether that is the case or not?
8 And, Mr. Misetic, could you give us an indication as to how many.
9 Would that be two, three?
10 MR. MISETIC: To my knowledge ... it's at least five and
11 counting, Mr. President.
12 JUDGE ORIE: At least five and counting.
13 Could I ask you, Mr. Cule, to -- yes, if you would activate your
14 microphone, yes.
15 MR. CULE: [Interpretation] I'll try and be clear.
16 In a case when there are criminal -- when there is criminal
17 processing or investigation, the police does have the right to call in
18 citizens to provide them with information. The citizen is duty-bound to
19 respond to the police invitation. They are not duty-bound to answer
20 questions, and the police does not have the right to re-call him with
21 respect to the same crime that he might possibly be charged with, nor is
22 the citizen duty-bound to respond to any additional calls from the
24 So that can't be the case. It can't be forcible interviews which
25 are repeated in such a way as to force a person to come in and place him
1 in a detrimental position of any kind.
2 JUDGE ORIE: Let me first try to establish. Are they called for
3 interviews as suspects of crime, or are they called as potential
5 MR. CULE: [Interpretation] They are called into these interviews
6 not as suspects. If they were called as suspects, then that would be
7 state in the summons; they are summoned as citizens.
8 JUDGE ORIE: Yes. That is, that they are summoned so they have
9 to appear, and they will be interviewed not because there is a factual
10 basis for a suspicion that they would have committed a crime, but because
11 they apparently have knowledge which is of interest for ongoing
12 proceedings or ongoing investigations against others.
13 Is that correctly understood?
14 MR. CULE: [Interpretation] That's right. They needn't be
15 proceedings against other individuals. There can be suspicion that a
16 crime has been committed and that those individuals have certain
17 knowledge. So a statement is taken from them if they wish to give it.
18 And that statement, as a rule, will be sent to the state attorney's
19 office in question, and it will be up to them to decide whether to take
20 the case further or not.
21 JUDGE ORIE: May I then seek a further clarification of part of
22 your answer.
23 You said, and I'm reading from page 20, lines 4 and following:
24 "They are not duty-bound to answer questions, and the police does
25 not have the right to re-call him with respect to the same crime that he
1 might possibly be charged with ..."
2 Which language strongly suggests that the interview relates to a
3 matter for where -- for which the person that is interviewed will be
4 charged with, which puts him in a position pretty close to a suspect.
5 I'm quoting your words, sir.
6 MR. CULE: [Interpretation] That's right. When I said in my
7 introduction and referred to what Mr. Misetic said, I spoke about the
8 position of a suspect, and after that, I went on to speak about what
9 happens when citizens are called in for interviews. I understood your
10 first question to be what the procedure was towards suspects. And so
11 what I said at the -- in the introduction is the right of a suspect.
12 That's how we treat it. We look at the rights of suspects in that
14 JUDGE ORIE: Yes.
15 Mr. Misetic, you would like to add.
16 MR. MISETIC: Just for the record, persons on our Defence team
17 have been called more than once to police interviews, so I'm not sure
18 where the distinction is between our position and the Croatian position
20 Mr. Ivanovic, even after he was indicted, was called back for a
21 compulsory police interview which is now attached to an OTP filing.
22 That's the first point.
23 The second is that the Republic of Croatia
24 interviews are in relation to a crime. One of the persons that was
25 interviewed from our office -- one of the persons that was interviewed
1 from our office who, before we knew that they had been called to a police
2 interview, was called into the police station and asked questions such
3 as, Who works in the office; who has what responsibilities within the
4 Gotovina Defence team; how do you communicate with each other; internal
5 workings of the Gotovina Defence which don't seem to be related to any
6 specific document, et cetera.
7 Those then are then being put together in reports. I'm unaware
8 whether internal workings of the Gotovina Defence have been disclosed or
9 are to be disclosed to the Office of the Prosecutor in this proceeding.
10 JUDGE ORIE: Let's ask.
11 Again, I said I'm seeking verification of what Mr. Misetic tells
12 us, that several members, on a first counting five, were compulsorily
13 interviewed by the police.
14 First of all, apart from your general statement on what the
15 powers, and what of the police, and what duties of citizens are, is it
16 correct that several persons from the Gotovina Defence team have been
17 called for interviews where they had to appear?
18 MR. MARKOTIC: [Interpretation] Your Honour, with your permission
19 I would just like to explain something that is very -- that is vital to
20 these proceedings.
21 JUDGE ORIE: [Previous translation continues] ... explain
22 anything, but I'd first like to have an answer to my question.
23 MR. CULE: [Interpretation] I think the question is linked to
24 precisely the response that my colleague wished to make, Mr. Markotic
25 wished to make, and it is this. He is going to try and explain why these
1 individuals were called in the first place because it wasn't a question
2 of just criminal proceedings. There was something beyond a criminal
3 procedure that was, in part, linked to the Ministry of the Interior, and
4 that is the portion that Mr. Markotic wishes to explain to you and how
5 these people were called in relation to that.
6 JUDGE ORIE: I just was verifying whether they were called and
7 the number. And then the next question, and suggested by Mr. Markotic is
8 to explain why they were called.
9 But let's first try to keep to the facts. Were some five members
10 of the team called by the police? And let's not start struggling over
11 four or six, but ...
12 MR. CULE: [Interpretation] I have to put it this way. The
13 municipal state attorney's office, after it received a report from the
14 Ministry of Justice on an administrative investigation, asked for
15 information from the police and criminal processing. At this point in
16 time I can't say with any degree of certainty how many people were called
17 by the Ministry of Internal Affairs, that is to say, the police called
18 for those interviews. However, those individuals were not called only
19 because of the interest shown in criminal processing --
20 JUDGE ORIE: [Previous translation continues] ... it seems to be
21 a problem. Just as a first step to establish whether persons were
22 called, and even if you do not know the precise number, which I
23 understand -- were persons called? That's the first question.
24 And then I will ask you why they were called, but I'd like to do
25 it step by step.
1 Were persons called by the police for interviews?
2 MR. CULE: [Interpretation] Some persons, quite certainly, were
3 called in order to perform an inquiry, to conduct an inquiry. For the
4 needs of a potential criminal procedure. And that's what I want to
5 stress because of possible criminal proceedings later on.
6 JUDGE ORIE: [Previous translation continues] ... opportunity to
7 explain whatever you want to explain at a later stage.
8 But I first want to the have the factual information. So persons
9 were called. You do not know exactly the number of persons called. At
10 the same time, you do not say it's impossible that there were five, as
11 Mr. Misetic tells us.
12 Second question: Those persons, were they under a duty to come?
13 I'm not yet asking whether they were under a duty to answer, but were
14 they under an obligation to appear for such an interview?
15 MR. CULE: [Interpretation] Ms. Zeljka Pokupec will answer that
16 question because she is the municipal state attorney in Zagreb, and she
17 is better versed in the matter and the procedure taken by the police,
18 pursuant to the municipal state attorney's instructions.
19 MS. POKUPEC: [Interpretation] Your Honour, after the municipal
20 state attorney's office in Zagreb
21 Administration and Department for Cooperation with the International
22 Criminal Tribunal of the Ministry of Justice which represents the
23 criminal report as well indicates the existence of possible --
24 JUDGE ORIE: I'm really going to stop you. I said again and
25 again that you have an opportunity to explain whatever you want to
1 explain, but I first want the facts. The facts, we have now established,
2 that a number of people were called by the police.
3 My next question was, Were they under an obligation to come?
4 MS. POKUPEC: [Interpretation] That's right.
5 JUDGE ORIE: Third --
6 MS. POKUPEC: [Interpretation] A number of people were.
7 JUDGE ORIE: Yes. That being established, I follow up first,
8 because what I'm doing, I'm verifying, at this moment, whether what
9 Mr. Misetic tell us, whether there is any dispute about that. Then later
10 if you say, But this should be understood in a certain context, I will
11 give you an opportunity to do so.
12 One of the things that was put by Mr. Misetic, that the results
13 of such interviews, the content of it, were given to the Office of the
14 Prosecution in The Hague
15 or not. Whether they were good reasons for it is different matter, but I
16 just first want to establish what the facts are.
17 Was the content, or any report on such interviews, was that
18 relayed to the Office of the Prosecution?
19 MS. POKUPEC: [Interpretation] So from the criminal proceedings
20 reports were relayed about raising indictments against Marin Ivanovic and
21 Jurica Sare and Marijan Kretic. And it wasn't an information interview.
22 JUDGE ORIE: Could I ask you whether the information which was
23 relayed to the Office of the Prosecution, did it deal with any internal
24 matters of the Gotovina Defence? The internal working of the internal
25 organisation, the division of tasks? Because I'm verifying point by
1 point, whether, what Mr. Misetic tells us, whether there is any factual
2 merit in it. If you don't know, tell us; if you do know, tell us as
4 MS. POKUPEC: [Interpretation] As far as the organisation goes, we
5 did not have that information, and that information did in the go to the
7 JUDGE ORIE: Yes. Mr. Misetic told us that these were the
8 questions. You now tell us that you didn't have that information. There
9 are several options, one of them being that the questions were not
11 Were questions put to those persons who were called for an
12 interview in relation to the internal dealings of the Gotovina Defence
14 MR. CULE: [Interpretation] The state attorney's office, with
15 respect to these circumstances, did not ask to have an interview with
16 them. We did not receive that information, and we did not pass it on to
17 the Prosecution.
18 JUDGE ORIE: Yes. My question was whether questions were asked
19 in that respect. Because we had established -- you told us already that
20 you didn't have the information. And information you don't have, you
21 can't pass to anyone else. But then my next question was whether
22 questions were asked in this respect.
23 MR. CULE: [Interpretation] Unfortunately, I did not have an
24 opportunity to explain why the police could have talked in another way to
25 these individuals. Because that is the part which relates to the
1 administrative inquiry and investigation. And within that part, possibly
2 that kind of question was asked, but the state attorney's office cannot
3 know about that. Possibly, in what the police undertook, it did ask
4 those questions, possibly. But I or, rather, the state attorney's office
5 cannot know about that on the basis of any records or interviews.
6 JUDGE ORIE: The answer is quite simple and, don't worry, this
7 courtroom is reserved until a quarter to 2.00, so don't worry about that
8 you don't have an opportunity to explain.
9 But, again, I want to clearly distinguish between facts and
10 positions taken in respect of those facts. It's of no use to discuss the
11 why is -- if the question of whether it happened and -- has not been
12 answered. I want to have a clear factual basis. I want to know exactly
13 where there's any dispute about the facts to start with.
14 So you say, I do not know. Such questions may have been put to
15 those persons.
16 Mr. Misetic, is there any other factual matter which I should
17 address at this moment? I think that we went through the most important
19 MR. MISETIC: Yes, Mr. President, I can state as a fact that in
20 fact the MUP did conduct such interviews, posed those questions, the
21 person from our office I did not have time to instruct on Rule 70 and
22 Rule 97, and then that person did answer in detail the questions that
23 were put to him. Subsequent people are being called in. We have managed
24 to instruct subsequent people to invoke Rule 70 and Rule 97 to which the
25 police respond, It doesn't matter; we have already learned everything
1 anyway about how you all work inside the office.
2 So I think that matter should be -- not be in dispute. I trust
3 what my colleagues from the state attorney's office state, that they
4 don't have that information, but it is certain that it is in the Ministry
5 of Interior of the Republic of Croatia
6 JUDGE ORIE: Yes. Having verified the facts, I would now like to
7 give you an opportunity to explain, as you apparently wish to do, and I'm
8 carefully listening to you why the interviews were conducted and what we
9 should know about them more, in order to understand the position of the
10 Croatian government.
11 Mr. Markotic.
12 MR. MARKOTIC: [Interpretation] Thank you, Your Honour.
13 I would like to remind you of a fact which in fact was the reason
14 for which the whole inquiry was undertaken and that -- the fact that
15 people were interviewed. In May 2007, the Prosecution of the ICTY asked
16 that a subpoena be issued against Croatia
17 materials from the special police and the Ministry of Defence, the
18 so-called artillery logs and documentation.
19 Now in July of last year, we appeared before this Trial Chamber.
20 And on the 16th of September, 2008, we received instructions from the
21 Court that we will to expand and intensify the investigation in order to
22 find the documents that were still lacking and that were being sought by
23 the Prosecution and requested by the Prosecution, and to provide all the
24 documents we come up with during our investigation and the sources from
25 which those documents were sourced. The names and functions of the
1 individuals who were interviewed during these proceedings and to provide
2 transcripts of those interviews.
3 In carrying out the decision taken by the Trial Chamber, we did
4 indeed carry out interviews. We conducted interviews as far as military
5 documents were concerned, and we interviewed about 113 individuals
6 relating to military aspects. To police documents, we interviewed 130
7 persons. And they are the official reports that were provided both to
8 the Tribunal and to the OTP in keeping with the instructions given by the
9 Trial Chamber on the 16th of September, 2008.
10 In those interviews, people were mostly asked about those
11 documents that were still lacking and following list C of the Prosecution
12 provided with the subpoena issued against Croatia for that purpose. So
13 that is the administrative investigation inquiry conducted by the
14 Ministry of Justice, the Ministry of Defence, and the Ministry of
15 Interior, in order to arrive at the facts to see where those lacking
16 documents were.
17 After all this was done, and we sent the OTP and the Tribunal
18 five reports with annexes and appendices about everything that we did, we
19 also tabled a report to the state attorney's office, which ex officio
20 then, as the report contained elements of a criminal report under
21 Croatian law to initiate criminal proceedings against these three
22 individuals that were mentioned. I, myself, do not have any knowledge,
23 nor do I know whether in those official reports the structure of the work
24 of the Defence teams was asked about. Because, first of all -- the prime
25 object was to come up with the documents that were lacking and which we
1 were asked to find by the Tribunal and to then pass on.
2 So, along with all the other relevant facts and everything else
3 we did within the frameworks of this administrative investigation, that
4 was the basis and foundations upon which the state attorney's office
5 launched criminal proceedings. And the same reports were sent on to this
6 Trial Chamber and to the OTP of the ICTY.
7 JUDGE ORIE: Could I ask you then one question. I do understand
8 that Mr. Ivanovic is charged for concealing or destroying of two
9 documents. Were these among the documents that were asked for by the
10 Office of the Prosecution?
11 MS. POKUPEC: [Interpretation] In this specific case, the
12 documents that are included in the indictment against Marin Ivanovic, it
13 is not certain whether these were the documents sought by the OTP of the
15 THE INTERPRETER: Interpreter's correction: It is unimportant,
16 rather than not certain.
17 MS. POKUPEC: [Interpretation] These documents were supposed to be
18 contained in the archives of the Republic of Croatia
19 of such documents represents a crime which is prosecuted ex officio.
20 JUDGE ORIE: Yes. Could I ask you, then, although the order was
21 issued by the Chamber, and the Chamber in September very much insisted on
22 further investigations. Apparently you have interviewed members of the
23 Gotovina Defence team. The Chamber knows that a lot of documents were
24 received. In the proceedings before this Tribunal, the Chamber does not
25 start studying all of them because we wait, we give them to the parties,
1 and we wait and see whether they want to present these documents as
2 evidence before the Chamber.
3 Now -- so, therefore, this Chamber is not privy of the contents
4 of those documents. The parties most likely are.
5 Now, have any of the documents sent since September, because the
6 earlier reports were that you'd given all that was available. Then --
7 but that was not all that was sought. We then invited you to intensify
8 your searches. Have the -- has any document ever been retrieved from
9 members of the Defence team or through the information provided during
10 these interviews with members of the Defence team?
11 So I'm trying to find out what -- where we have received quite a
12 number of documents of which the content is not -- which -- with which
13 I'm not acquainted, whether, to say so, the Defence team of Mr. Gotovina
14 has been a source of additional documents and information which was
15 subsequently provided to the Tribunal?
16 MR. CRNCEC: [Interpretation] Your Honour, the answer is yes.
17 Some documents were received by -- from the Defence or
18 information gained through interviews conducted can Defence team members.
19 In the opinion -- in the opinion of the Croatian military experts, such
20 documents do fall under the category of the documents included in the OTP
21 request, in terms of the 54 bis proceedings. That is to say, Croatia
22 duty-bound to provide such documents in keeping with the September order
23 of this Court.
24 In order to respond to your previous question, concerning the two
25 documents contained in the indictment against Mr. Ivanovic, in terms of
1 the information we have for the time being, they are not included in that
2 category of documents. It is a personal diary for which our military
3 analysts believed would be included. It is a -- they thought it was a
4 working diary of the Artillery Group number 5. But as far as I know,
5 both Defence and the Prosecution expressed their view that such a
6 document is not included in the group.
7 The other document is a map, which is not among the artillery
8 logs sought.
9 JUDGE ORIE: Yes. I want to leave now the area, again, of the
10 substance of interviews and -- because this Chamber, at least at this
11 moment in time, has not sufficient information to form an opinion about
12 the substance, and it is even the question whether the Chamber should
13 form any opinion about that. It is only because Mr. Misetic raised, that
14 the case brought against Mr. Ivanovic is part of, if I could say it,
15 short, wider operation, that I briefly inquired into what had happened
16 and why that happened.
17 I would like to leave that area at this moment.
18 As far as immunity until now is concerned, and I'm addressing
19 you, Mr. Tieger, knowing that Mr. Misetic is of the opinion that you have
20 no standing in this matter, but I nevertheless invite you to make any
21 additional submissions, if you wish to do so.
22 MR. MISETIC: If I could just clarify our position,
23 Mr. President.
24 JUDGE ORIE: Yes.
25 MR. MISETIC: What I believe I stated, or I should have stated,
1 is there has been no articulated position of standing by the Prosecution.
2 That doesn't mean that they don't or can't articulate a position, but
3 what we also suggested in our reply was that more along the lines
4 consistent with what we have just heard now, which is that this case is
5 connected to an overall -- has a relationship to the Trial Chamber's
6 order of the 16th of September, and if that is the case, then that's the
7 Prosecution's argument, I suppose, for standing in this Chamber. But
8 that should be --
9 JUDGE ORIE: Yes. The parties have invoked both a lack of
10 standing, Mr. Gotovina issued has no -- has a lack of standing in
11 relation to Mr. Ivanovic. You said at least not an articulated standing
12 for the Prosecution.
13 It may be clear that the issue could possibly affect the position
14 of the parties, I would say, as far as Mr. Tieger is concerned, that if
15 there are any concerns, that these investigations are needed in order to
16 fully meet what the Chamber asked the Croatian government to do. I'm not
17 saying that this is the proper way to do it, whether there are any limits
18 to that is a different question. But just to say that it could affect
19 the position of the Prosecution, just as I would say the proceedings
20 against Mr. Ivanovic could have an impact on the position of
21 Mr. Gotovina.
22 MR. MISETIC: Mr. President, I actually agree with that.
23 JUDGE ORIE: That's --
24 MR. MISETIC: What I wish to reiterate is that that should be
25 stated because there has been a argument advanced that what is happening
1 in Zagreb
2 JUDGE ORIE: It should have been stated. I know --
3 MR. MISETIC: [Overlapping speakers] ... No, no, no, but let me
4 explain why I say that. There is an argument before the Chamber, arguing
5 to, both from the Prosecution and the Republic of Croatia
6 you should deny the motion because it is interference in the domestic
7 matters of the Republic of Croatia
8 situation is that this is part of a proceeding for which the Prosecution
9 has standing because it relates to a matter pending before the Tribunal,
10 then is not strictly a domestic issue of the Republic of Croatia
11 that is why I asked that that be articulated.
12 JUDGE ORIE: That is clear. Now, whether it has any impact,
13 sometimes internal matters can have an impact on other matter but still
14 remain in the domain of the domestic authorities. I'm not saying that
15 this is such a case, but the mere fact that a development has an impact
16 on this Tribunal does not automatically - and I emphasise automatically -
17 mean that the Tribunal has the authority and the power to intervene. But
18 I just was about to establish that this -- these developments may have an
19 impact on the position of both parties. If not, I think we would not
20 even have had this hearing.
21 Mr. Tieger, any -- Mr. Russo?
22 MR. RUSSO: Yes, thank you, Mr. President.
23 We won't address the specific issue of standing unless the
24 Court --
25 JUDGE ORIE: Well, it seems not to be a major issue anymore,
1 unless you want to address only the standing of Mr. Misetic.
2 MR. RUSSO: No, Mr. President. I'd much prefer to stick to the
3 issues which have been raised during the hearing today with respect to --
4 JUDGE ORIE: Yes, from the fact that I invite you to make any
5 further submissions from the fact that Mr. Misetic said, Well, it has not
6 been explained properly perhaps, but I do not as such.
7 Let's go to the substance of the matter. If there's anything on
8 the -- on the functional immunity that you would like to add beyond what
9 has been submitted in writing and what was said today.
10 MR. RUSSO: Yes, Thank you, Mr. President.
11 We clearly did not address the issue of forum shopping in our
12 response, because we hear for the first time today that Mr. Ivanovic has
13 not invoked immunity before the courts in Croatia. Our position with
14 respect to that is that this is an improper attempt to forum shop the
15 issue of immunity to this court rather than a court before which it
17 Now whether Mr. Ivanovic enjoys immunity, of course, is a
18 separate issue from who decides whether or not Mr. Ivanovic enjoys
19 immunity --
20 JUDGE ORIE: I will come to that. I will come to that. You mean
21 which court or even further which administrative authority within this
23 MR. RUSSO: Yes, Mr. President.
24 JUDGE ORIE: I will deal with that matter.
25 MR. RUSSO: Thank you.
1 JUDGE ORIE: -- shortly.
2 MR. RUSSO: Mr. Misetic ties the issue of forum shopping, in
3 other words he tells this Trial Chamber, I'm coming to you because it is
4 a waste of time to speak to the courts in Croatia. That, I would argue
5 to the Trial Chamber, is simply an admission of the fact that he is forum
6 shopping this issue. But irrespective of that, he seems to be relying on
7 the position of the prosecuting authority with respect to immunity and no
8 one has, as yet, asked the court in Croatia whether it believes that
9 immunity applies. If the Prosecutor takes a position opposed to that of
10 the Defence, that is certainly nothing new in litigation. It would
11 certainly not be appropriate if, for example, Mr. Misetic said, Well, the
12 Prosecution believes Mr. Gotovina is guilty before the ICTY; it's a
13 complete waste of time to ask Orie or any of the other Judges their
14 opinion with respect to that; I'm going to go directly to the European
15 Court of Human Rights to get just for my client.
16 It's simply not the forum in which it should be done. Whether it
17 would cause delay in this proceeding is a red-herring issue,
18 Mr. President. Any procedure by which the issue of immunity will be
19 resolved will necessarily involve some form of delay. That, of course,
20 is tied back to who determines whether there is in fact immunity and who
21 determines whether such immunity will be waived and under what
22 circumstances. If this court were to decide to take up the issue, the
23 Court would have to make factual findings, determine exactly what
24 happened. There's no reason why this court needs to do it, as opposed to
25 another court or an administrative body. But, in any case, asking the
1 Court to intervene because of time considerations is an incredibly
2 intrusive act by the Tribunal which delay can be addressed, for example,
3 if the Gotovina Defence wanted to make an argument that this proceeding
4 should be stayed or adjourned until such time as the immunity issue is
5 resolved in another forum, that would address the concern of any impact
6 that the collateral prosecution would have on the ability of Mr. Ivanovic
7 or anyone else to assist in Mr. Gotovina's Defence. I would like to tie
8 that also, Mr. President, to the fact that the relief being sought by the
9 Gotovina Defence is not simply related to Mr. Ivanovic. They're seeking
10 for the Trial Chamber to enjoin, not only the Prosecution of
11 Mr. Ivanovic, but to enjoin even the investigation by prosecuting
12 authorities in the government of Croatia into anyone who commits acts
13 which the Gotovina Defence believes is in furtherance of its obligations
14 before this Tribunal. There are obviously very serious considerations
15 for this Chamber if it were to enter such an order.
16 With respect to the issue of whether this is actually having any
17 affect on Mr. Gotovina's preparations or presentation of his Defence,
18 there has been no information provided on that whatsoever. There is
19 merely the bold statement that this is -- has a chilling effect on --
20 JUDGE ORIE: I think you're going beyond what I invited you to
21 address. That is the immunity issue. Functional immunity. You're now
22 talking about the effect, and I would first focus on the immunity issue.
23 MR. MISETIC: Mr. President.
24 JUDGE ORIE: Mr. Misetic.
25 MR. MISETIC: One minute.
1 JUDGE ORIE: One minute, and then we have a break.
2 MR. MISETIC: Okay. Mr. Russo is incorrect. We are not forum
3 shopping. As I indicated there is only one authority for jurisdiction to
4 protect Ante Gotovina's rights. Mr. Ivanovic' immunity is derivative of
5 Ante Gotovina's rights under Article 21 of the statue, which would then
6 flow into Article 30 of the statute. A court in Zagreb has no
7 jurisdiction, and administrative body of the United Nations has no
8 jurisdiction to protect the fundamental rights of Ante Gotovina under
9 Article 21 of the Statute. And specifically Article 20 of the Statute
10 authorises this Trial Chamber to protect Ante Gotovina's fundamental
11 rights and to issue all such orders as are necessary to protect those
13 The issues here are equality of arms. And for that reason,
14 Mr. President, we dispute the Prosecution's assertion and state that
15 there can be no forum shopping when there is only one forum.
16 Thank you.
17 JUDGE ORIE: Thank you, Mr. Misetic.
18 We will have a break, and we'll resume at five minutes past
20 --- Recess taken at 10.43 a.m.
21 --- On resuming at 11.11 a.m.
22 JUDGE ORIE: Mr. Misetic, I have a question for you, in relation
23 to the time.
24 You have submitted an, as you call it, accreditation letter,
25 which dates from March 2008, I think, which refers to a request for
1 accreditation on the -- I think it was on the 6th of March, but
2 March 2008. Apart from whether the letter itself calls it registration
3 rather than accreditation, at the same time, and I'm now quoting from the
4 ex parte material, there Mr. Ivanovic appears on the list from 2006.
5 That raises some questions as to if there's any immunity from
6 when on it attaches. Could you give me your position in that respect.
7 MR. MISETIC: Mr. President, our position is that it attaches
8 from the time that Mr. Ivanovic is recognised by the Republic of Croatia
9 as working for the Gotovina Defence, and in the interests of the Gotovina
10 Defence, within the Republic of Croatia
11 receive notice that he is acting in the capacity as a member of the
12 Gotovina Defence. And --
13 JUDGE ORIE: Well --
14 MR. MISETIC: If I may just complete that thought. What we had
15 done in our filings, was to alert when the Trial Chamber was initially
16 notified of Mr. Ivanovic's role on the team, which is I believe the 24th
17 of July, 2006. The Registry -- what we had sent initially was, I
18 believe, the -- and I'm not familiar necessarily with the precisely
19 terminology, but whether it is accreditation or registration, it was on
20 the eve of trial so that Mr. Ivanovic could appear in court and use
21 e-court and those facilities that are necessary for participation from
22 within the courtroom, which was then extended to him.
23 But the Chamber, itself, has been on notice since the 24th of
24 July, 2006.
25 The Republic of Croatia
1 2006, and we are in the process now of trying to retrieve a document or
2 correspondence between the Republic of Croatia
3 advise the Court that in the ordinary process of obtaining documents from
4 the institutions of the Republic of Croatia
5 archive, our investigators will make the selections in the state archive.
6 Typically then, the Croatian government will review those documents and
7 then, when they are ready, they will be delivered to Mr. Ivanovic under
8 cover letter in which it is indicated that the delivery of state
9 documents to Mr. Ivanovic is being given purpose to the needs of the
10 Defence before this Tribunal. So there should be very little, if any,
11 dispute that the Republic of Croatia
12 of the proceedings before this Tribunal -- I should say from the
13 formation of the Trial Chamber in this case that Mr. Ivanovic is employed
14 by General Gotovina for purposes of his Defence. And in fact
15 Mr. Ivanovic is one of the few -- I believe there is also one other
16 attorney in Zagreb
18 the Gotovina Defence and the Republic of Croatia
19 Mr. Ivanovic and/or our colleague, Mr. Fartic [phoen], and the Republic
20 of Croatia
21 JUDGE ORIE: When you are referring to the 24th of July, did you
22 mean - let me just see, 24th of June, 2006.
23 MR. MISETIC: If you look at our filing, Mr. President, in a
24 footnote I indicated that when I sent the letter, I misdated it. And so
25 it says the 24th of June, but it should be the 24th of July. And the
1 Chamber will note that that was sent pursuant to an order of the
2 Trial Chamber that was issued on the 14th of July, 2006.
3 JUDGE ORIE: Yes, that is -- I missed that correction, as far as
4 the date is concerned.
5 Now, it is your position that whomever is on your team, if you
6 give notice that immunity attaches, whether it is it Saint Joan of Arc or
7 Al Capone, doesn't make any difference. Is that correctly understood?
8 MR. MISETIC: This goes into the issue of functional immunity.
9 If there is notice to the government of Croatia that someone is acting in
10 their capacity as a member of the Defence team, then acts which are
11 conducted pursuant to the function of a member of the Defence team enjoy
12 immunity. Al Capone would still be subject to the jurisdiction, if he
13 were Croatian, of the Republic of Croatia
14 Republic of Croatia
15 JUDGE ORIE: Yes. And if -- let's just assume, for argument
16 sake, if a crime would be committed, you would say that person enjoys
17 immunity until it is lifted?
18 MR. MISETIC: I would, Mr. President. And I would note from the
19 earlier submission of the Republic of Croatia
20 acknowledges the Blaskic Appeals Chamber decision and says that Croatia
21 does not dispute that the Defence does not have to go through official
22 channels to collect documents. But later on they say Croatia
23 right to prosecute crime, which, of course, leads us to the question of
24 if the act is the collection of evidence which Croatia doesn't dispute
25 does not need to go through official channels, but the taking of evidence
1 without going through official channels is a crime, then we would suggest
2 that that, per se, would fall within functional immunity. In other words
3 if Croatia
4 documents first to the Republic of Croatia
5 documents for purposes of these proceedings should enjoy functional
7 JUDGE ORIE: Yes. Now, if -- again, for argument's sake, if you
8 would steal evidentiary material, you know that your neighbour has some
9 relevant evidence, he doesn't want to give breaking and entering. How
10 would you look at that? That is a -- certainly an activity which falls
11 within the scope of preparing a Defence, but, at the same time, could be
12 considered a commission of a crime. What in your view should be done
13 under those circumstances?
14 MR. MISETIC: In my view, Mr. President, the first step would be
15 what has taken place frequently in this case, which is a communication
16 from, for example, Mr. Markotic's office to the Trial Chamber of those
17 allegations and a request that, on the basis of those allegations, either
18 a further investigation take place or be allowed under the
19 Trial Chamber's ruling, or otherwise a full lifting, if warranted, of the
20 functional immunity. If in fact a Defence person was engaging in
21 untoward methodology or methods of obtaining evidence, then obviously
22 that is something that the Trial Chamber could continue to monitor, and
24 the Chamber. I would note that, for example, if we were talking about
25 the ICC, I think a similar procedure would take place where if a Defence
1 attorney or investigator would engage in such conduct, what would be the
2 recourse? Or to put it a different way, for purposes of this Tribunal,
3 we, for example, I'll use myself, enjoy immunity here within the
5 evidence located within the Netherlands
6 facility in the Netherlands
7 headquarters agreement. That doesn't preclude the Netherlands from
8 petitioning the relevant -- I don't recall specifically the moment under
9 the headquarters agreement who is to be petitioned, whether it is the
10 President or the Secretary-General or a Trial Chamber, but nevertheless
11 that is the procedure that would be employed, and I think a similar
12 procedure should be employed here.
13 JUDGE ORIE: Yes, that immunity, in diplomatic circles is often
14 resolved by sending the diplomat back and expecting that his home country
15 would take appropriate action.
16 Now, could you tell us now -- and I'll later ask the same
17 question to you. Mr. Ivanovic can be considered to be both, in terms of
18 diplomatic language, to be on mission in Croatia because that is where he
19 performs his duties. That's just -- that's not an offence. Perhaps we
20 could start administrative proceedings and inquiring and what happens.
21 So often the solution is that a country which has jurisdiction
22 takes over, that's usually the home country, but here we are in a
23 situation where Mr. Ivanovic is both on mission and, from what I
24 understand, to be fully transparent, you referred in one of your
25 footnotes to the, I think to the -- what do they call it, the
1 check in/check out march material. I had a look at that, because I had
2 no idea what it was about, and then I noticed that the paperwork in
3 relation to taking up residence in the Netherlands was all empty, which
4 -- but I'm asking you, leads me to conclude that Mr. Ivanovic has not
5 applied for residence in the Netherlands
7 asked to see such a form, and then the Registry gave me the specific one
8 for Mr. Ivanovic. I want to be very clear on that. And I noticed that
9 all the forms about application for residence in the Netherlands
10 resident's permit, et cetera, were not -- these forms were all empty.
11 MR. MISETIC: Yes --
12 JUDGE ORIE: Does that mean that Mr. Ivanovic has no residence in
14 MR. MISETIC: That is correct, Mr. President.
15 JUDGE ORIE: Yes. Now, you will understand what my question is,
16 that whereas often the country of the state where someone enjoys immunity
17 just doesn't take any action, but, of course, the territorial scope of
18 the immunity is limited to the state where someone is accredited, whether
19 or not this is accreditation or just registration is also perhaps a
20 matter. But what, in your view, should be the -- apart from waiving the
21 immunity, would there be any other solution?
22 MR. MISETIC: I'm not -- I have to acknowledge, I'm not sure what
23 the -- if you could advise me what is the specific problem that --
24 JUDGE ORIE: Well, if I have a diplomate, if I have a Belgian
25 diplomate who is accredited in Germany
1 they just expel him, they take him -- they withdraw his accreditation.
2 He goes back to Belgium
3 appropriate criminal proceedings against that person, on the basis of the
4 principle of active personality or also called a nationality principle.
5 So there have you a fallback situation where the sending state would take
6 appropriate measures. Whereas the sending state here, apparently is the
8 MR. MISETIC: That --
9 JUDGE ORIE: Sending him to a -- or at least he performs his
10 duties on the territory of Croatia
11 of Croatia
12 -- well, let's just assume that he would have committed a crime, to
13 prosecute that in any way.
14 Is there any other way than to seek the immunity to be waived?
15 MR. MISETIC: Let me answer in two parts.
16 First, ironically enough, I thought about this question but only
17 actually in relation to you, in passing, which is what happens if a Dutch
18 judge is appointed to the ICTY and has full diplomatic immunity, what
19 does the Netherlands
20 Unfortunately for me, I left it at that thought and never
21 researched it further, but --
22 JUDGE ORIE: You better now understand why the question came into
23 my mind, yes.
24 MR. MISETIC: I do. I guess it depends on the nature of the
25 criminal offence, Mr. President. If we're talking about a criminal
1 offence that arises from conduct -- in other words, from the function --
2 JUDGE ORIE: Breaking and entering to obtain evidence. Let's
3 take that example.
4 MR. MISETIC: Correct. The first thing delving deep in theory
5 that comes to mind is, indeed, that also might be something that is
6 certainly subject to a variety of measures that could be taken by the
7 Tribunal itself. The first thing, as I'm aware, under Article 34 of the
8 Code of Professional Conduct, we as Defence counsel are responsible for
9 our staff, and so there are disciplinary measures within the Code of
10 Professional Conduct that could be taken for such, what could be deemed
11 misconduct. In other words engaging in activity that is untoward, not
12 fair, and otherwise could be deemed as misconduct.
13 The second issue is, of course, a question of whether there is a
14 Rule 77 issue, and that could be construed as an interference with the
15 administration of justice. So in terms of the Tribunal's jurisdiction to
16 monitor the situation, there are those avenues.
17 Outside of that, if we're talking about crime per se, and
18 somebody committing a crime that is more than just a classification of an
19 activity that is otherwise conducted in the normal course of preparing --
20 JUDGE ORIE: Breaking and entering to obtain evidence.
21 MR. MISETIC: Yes. I -- indeed, at the present time no other
22 remedy comes to mind other than to advise the Trial Chamber that such a
23 conduct has occurred and to request that the person be subject to -- be
24 relieved of the functional immunity for that act and to be prosecuted.
25 JUDGE ORIE: I'd like to put the same question to you. What, in
1 your view, all on the basis of assuming that there would be immunity.
2 I'm not expressing any view on that, but that is the basis on which the
3 motion has been brought, and we are trying to understand it in all
4 details. Therefore, we started with immunity. But now, on the basis of
5 the assumption that there would be immunity, what, in your view, if under
6 international law, under the Statute that would be an obligation to
7 observe the immunity of staff members of a Defence team, what would the
8 appropriate solution, in your view?
9 MR. CULE: [Interpretation] We're talking about a hypothetical
10 situation, of course. And what is vital to that hypothetical situation
11 is precisely the example that you quoted, Your Honour. In the specific
12 case, we would have a citizen of his own country who, on the territory of
13 his own country is trying to protect himself by invoking immunity from
15 Now, if we were to allow him, for example, and I'm talking about
16 this as an example, if he were to steal archive material from an archive
17 and the country of origin has to be informed -- has to inform a body
18 outside the domestic jurisdiction to stop him, then this would provide
19 this individual with the go-ahead to commit crimes unimpeded in future.
20 So here we're dealing with a citizen that does not enjoy
21 diplomatic immunity in a foreign state, in a foreign country. And even
22 if he did have immunity, he would not have immunity in his own country.
23 And bearing this in mind, if I might be allowed to finish?
24 JUDGE ORIE: Yes, please do so.
25 MR. CULE: [Interpretation] And bearing in mind the development of
1 the situation as we have had in the Republic of Croatia
2 circumstances under which this occurred, we consider that we can apply
3 the provisions, legal provisions that apply in the Republic of Croatia
4 and prosecute that individual.
5 I see no other options. Faced with this situation, of course,
6 I'm not an expert in these very subtle issued of immunity as seen by
7 international law.
8 JUDGE ORIE: Now, two questions in this respect.
9 We talked about the territorial scope sometimes of immunity. And
10 I think I raised the complicating factor that someone is performing his
11 job, his mission, his duty in the country where he has residence.
12 Now, in terms of UN immunity, other than diplomatic immunity, the
13 immunity attaches to the missions performed under the UN flag. If I sent
14 a Belgian diplomate to Germany
15 however, an UN staff member, and that's, of course, I would say the
16 structure of UN immunity, is sent on a mission, whatever that mission is,
17 and if, therefore, again on the basis of the assumption, that a team
18 member would enjoy immunity, if he performs his duties in France or in
20 those circumstances, he would be deprived of the protection of immunity
21 in his own country, even where he would enjoy it if he was on mission in
23 Is that your position?
24 Mr. Markotic.
25 MR. MARKOTIC: [Interpretation] Thank you, Your Honour.
1 Well, if we take into consideration the rules governing
2 diplomatic immunity, it's an essential point as to whether it is a
3 foreign national, we're dealing with a foreign national, or the national
4 of the home country.
5 In diplomatic law, the privileges enjoyed and immunity enjoyed
6 under that, the exemption from immunity applies to persons who are from a
7 home country working outside the home country. Let me explain. If a UN
8 member, and we had cases of this kind, who enjoyed immunity committed
9 crimes in Croatia
10 informed who had sent the UN member, and usually these people would be
11 withdrawn. However, they weren't exempt from the jurisdiction applied in
12 his own country, in his home country.
13 For example, we had traffic accidents with a fatal outcome. I'm
14 not a legal man in that sense, but, yes, with a fatal outcome, with a
15 fatality. We would then inform those who sent them, sent the person,
16 they would be recalled but taken to court in his own country.
17 Now, if it's a person who is from his own country on a UN --
18 doing a UN job, he cannot be exempt from immunity. That is to say if
19 they have residence in the home country, regardless of the fact that they
20 are on an international UN mission or whatever. They are not exempt.
21 And this is usually based on a bilateral agreement between the UN mission
22 and the host country.
23 JUDGE ORIE: Yes, now here the complicating factor is that you
24 clearly make a distinction, and I think I more or less pointed to that at
25 an earlier stage as well, that the usual solution is, take him away from
1 the country where he is performing his mission, bring him back to his
2 home country because, perhaps, there no immunity applies.
3 Now here, one of the problems is that Croatia could be considered
4 both the state on whose territory the mission is performed and to the
5 home country. In the one position, you might have to respect the
6 immunity. And in that other position, you might not have to do that.
7 Now, what now tips the scale? I mean, do you have any legal
8 authority for saying, Under those circumstances, the position of Croatia
9 as a home country, prevails; or, do you have any authority saying, Under
10 those circumstances, the position of Croatia as the state on whose
11 territory the mission was performed binds us?
12 Do you have any legal authority for that? I am seeking your help
13 and assistance in order to fully grab the ...
14 MR. MARKOTIC: [Interpretation] Well, I think that the decisive
15 factor, in order to tip the scales, is whether any legally binding
16 document exists between Croatia
17 matters under the given situation. And then in conformity with that, the
18 solution would be self-evident.
19 Our sources can only international multilateral conventions or
20 bilateral agreements which Croatia
21 knowledge, and I state that my knowledge is not a full -- does not extend
22 to the full extent, the -- one's own citizens are always exempt. So the
23 fact that you have nationality and that you are a national of the country
24 excludes immunity in that country, in the home country in practice. And
25 that is why I think that national jurisdiction should apply in this case,
1 the laws of Croatia
2 JUDGE ORIE: I do understand that that's your position. What I
3 was asking for is where you say immunity never applies in your own
4 country, whether is there any legal authority for that, apart from your
5 well-thought-over personal position what, in your view, should be the
7 MR. MARKOTIC: [Interpretation] What comes to mind at this point
8 is the legal office of the legal advisor of the UN, and we mentioned that
9 earlier on. It's the under-Secretary-General which is the highest legal
10 body of the UN which could offer an interpretation of immunity, since
11 we're talking about a Tribunal that was formed pursuant to an UN
13 JUDGE ORIE: Yes. And, Mr. Cule, then you answered the question,
14 you presented it as if -- if you would accept that there was immunity,
15 that people would just go unpunished, even in their own country; they
16 would just do whatever they wanted. But waiver of immunity would resolve
17 part of your problem, isn't it?
18 MR. CULE: [Interpretation] Your Honour, I'm afraid I did not
19 understand your question fully. Namely, if we're looking for an answer
20 in this particular case and the immunity involved, and if a decision of
21 this Court is to follow, we will definitely abide by it. But as for the
22 other part of your question, I'm afraid I wasn't very clear about it.
23 JUDGE ORIE: You said the following - let me try to find it - you
24 said: "Now if he were to" -- "if we were with to allow him for
25 example" -- and I'm talking about this as an example, you said:
1 "If he were to steal material from an archive and the country of
2 origin has to be informed, has to inform a body outside the domestic
3 jurisdiction to stop him, then this would provide this individual with
4 the go-ahead to commit crimes unimpeded in future."
5 Now, a waiver of immunity would be granted by the competent UN
6 authority. And if such a decision would be taken, you could proceed
7 against that person.
8 So when you were talking about, this would provide this
9 individual with the go-ahead, that would not be the situation anymore
10 once immunity would have been waived by the competent authority, isn't
11 it? It was -- if you allow me to say, it was the only solution
12 Mr. Misetic said was the appropriate one, and from your answer, it does
13 not appear that you accept the consequences of a waiver, which is, I ask
14 for it. If you get it, you can -- do you not ask that third authority to
15 stop that person, but you seek permission to go against that person, and,
16 therefore, you will stop him, once you have obtained a waiver.
17 MR. CULE: [Interpretation] Yes, I said that it would have be
18 under an assumption that immunity should be waived because that person
19 had had immunity. I still stand by what I said. This person has no
20 immunity; therefore, there is no need for a waiver. And I also
21 conditionally said that it would be a go-ahead to commit crimes. In that
22 case the situation would be as follows.
23 We have a suspect who apparently committed a crime of stealing
24 archival material. And in order to proceed, we would have to ask for
25 permission of an international body. While waiting for that decision, we
1 are unable to do anything. Once it arrives we can go ahead with the
2 proceedings and prosecution if immunity is waived. But if that person
3 the next day commits the same crime, we again are unable to proceed
4 against him or her but have to seek a waiver yet again.
5 In my view that would be a never-ending story. The basic
6 question in my opinion is whether there are any legal rules at this point
7 that would allow for these persons to enjoy immunity in the Republic of
9 bind the Republic of Croatia
10 JUDGE ORIE: Thank you for that answer.
11 Mr. Misetic, would you like to --
12 MR. MISETIC: Yes. Two points. I have had a chance to think
13 about it. First, to clarify, I didn't mean to suggest that the only
14 remedy is waiver. It's the only one I can think of, but that doesn't
15 exclude that there may be other remedies.
16 JUDGE ORIE: I'm not asking you anything to go beyond what you
17 consider that would that be within your knowledge.
18 MR. MISETIC: Yes.
19 Now, if I could turn your attention, Mr. President, to our filing
20 2nd of April, which is the additional submission, there is the opinion of
21 assistant Secretary-General Johnson.
22 JUDGE ORIE: Yes.
23 MR. MISETIC: But at Appendix B or Annex B is the agreement
24 between the Republic of Croatia
25 the liaison office of the Prosecutor.
1 Now, this same issue with respect to Mr. Ivanovic applies to
2 Croatian staff employed in the liaison office in Zagreb.
3 So whatever difficulties the Republic of Croatia
4 respect to prosecuting members of the Defence to the extent that
5 functional immunity exists are problems that they already have, if they
6 are indeed problems, with persons employed in the liaison office who
7 happen to also be citizens of the Republic of Croatia
8 The second --
9 JUDGE ORIE: But I do understand that the answer is we committed
10 ourselves to that in a bilateral agreement, and then I hear you say
11 already, then there should have been a similar bilateral agreement for
12 Defence as well.
13 MR. MISETIC: Well, yes and no. Yes, but I would also state that
14 the Republic of Croatia
15 So to the extent that the Trial Chamber finds that such immunity,
16 functional immunity exists under the Statute, then Croatia is just as
17 committed to the Statue as it is to the liaison office agreement. And
18 therefore, what I understood your question to be was, Let's assume that
20 agreement, what remedies does Croatia
21 citizen and enjoys immunity? And what I'm suggesting is that Croatia
22 already in that position with respect to persons who are Croatian
23 citizens employed by the liaison office.
24 The second point I must raise is one that we raised in our
25 pleadings, which is the Office of the Prosecutor in fact conducts
1 investigations and has acquired evidence without going through official
2 channels of the Republic of Croatia
3 there an interest in enforcing Croatian law about archival materials when
4 it comes to a member of the Defence, but, to my knowledge, Croatia has
5 never attempted to seek a waiver of immunity for OTP investigators in
6 order to prosecute OTP investigators local courts for the, quote/unquote,
7 crime committed of concealing archival material?
8 JUDGE ORIE: Mr. Misetic, this goes into the substance of the
9 case, where the Chamber, up till now, has considered that it's not for us
10 to interpret what concealing means, what archival material means,
11 et cetera, under domestic law. So your presumption that there would have
12 been ever a situation where there would be --
13 MR. MISETIC: [Overlapping speakers] ...
14 JUDGE ORIE: Reasons to believe -- but you say they are never
15 sought -- they are never prosecuted.
16 MR. MISETIC: Let me put it in a hypothetical manner.
17 The problem as articulated by Croatia is if the person takes a
18 document, then we have to seek waiver, and then they might seek another
19 document, and then we have to seek waiver.
20 That problem, let me put it hypothetically, already exists with
21 respect to investigators of the OTP. So to the extent that there are
22 people in the field, hypothetically speaking, who may acquire evidence in
23 the field, Croatia
24 Secretary-General presumably, if they deem that, in that hypothetical, a
25 crime has been committed.
1 So there is no additional burden on Croatia that would exist or
2 that would be created that doesn't already exist in the scheme that has
3 been created with respect to how investigators, generally speaking,
4 whether we want to call them Prosecution or Defence investigators,
5 operate in the field, and what steps, then, Croatia would need to take in
6 order to prosecute if they deemed -- deemed the offence to rise to such a
7 level that it warrants a criminal prosecution.
8 JUDGE ORIE: Thank you for that.
9 MR. RUSSO: Mr. President, if I could be able to respond for just
10 a moment.
11 The questions that are being posed and the issues that are being
12 discussed and, in particular, this last point that Mr. Misetic raised,
13 the representatives of the delegation from Croatia have indicated that
14 the immunity which is enjoyed by the liaison office, for example, is
15 under a bilateral agreement. And it's -- from our position it's the same
16 inquiry which should be made with respect to if a crime is committed by a
17 member of the Prosecution and a crime committed by the member of the
18 Defence, that the issue of waiver is not brought to the Trial Chamber, it
19 is brought to the entity which extends the immunity to the individual who
20 has committed the crime, in other words, the UN. So it is the provenance
21 of the UN, the Secretary-General through the office of legal affairs or
22 whichever other competent administrative body to determine and negotiate
23 with the government of Croatia
24 waiver to -- this goes back to the argument about which forum in which
25 this issue is to be raised. The motion is bringing it out of the
1 procedural mechanism which is already in place for the Secretary-General
2 to deal with the issue of immunity. The Gotovina Defence is asking the
3 Court to intervene and potentially to arrive at a different conclusion as
4 to existence or waiver then the entity which negotiated the bilateral
5 agreement for immunity with the government of Croatia.
6 JUDGE ORIE: Thank you, Mr. Russo.
7 MR. MISETIC: If I may respond, Mr. President.
8 JUDGE ORIE: Yes, although I understood your answer to be
9 different. That is, where Croatia
10 situation, there they face the same problems they say are difficult to
12 MR. MISETIC: Yes, but now a new matter has been raised, which is
13 the proper person or institution to waive the immunity.
14 JUDGE ORIE: I come to that.
15 MR. MISETIC: Okay.
16 JUDGE ORIE: Who is the competent authority, because that was one
17 of the items on my list.
18 I may I ask you the following. If I look at -- I asked for
19 whether there was a legal authority where there might be a conflict
20 between, the one hand, respect for immunity, and, on the other hand, the
21 need to proceed against the person, because he is, at the same time, your
23 The agreement on the privileges and immunities of the
24 International Criminal Court, in Article 23, says -- it deals with
25 nationals and permanent residents, where the state, becoming a party, may
1 make a declaration which limits the immunity and the privileges, the
2 limitation is that that person only enjoys the privileges and immunities
3 as mentioned in Article 23 and none of the other.
4 Now, here, The immunity from personal arrest and detention and
5 the immunity from legal process of every kind in respect of words spoken
6 or written and all acts performed by that person in the performance of
7 his or her functions for the Court; or, in the course of his or her
8 appearance or testimony which immunity shall continue to be accorded even
9 after the person has ceased to exercise his or her functions for the
10 Court or his or her appearance or testimony before it.
11 Here, apparently, a clear choice is made, that, although, in a
12 limited way, the scale tips to the respect for immunity rather than to
13 the need for a state to proceed against one of its nationals or
15 I'm drawing your attention to it, because earlier when I asked,
16 whether -- you said, Well, this would be the appropriate solution.
17 Whereas, I see that, here, at least, in this legal instrument -- to
18 which, as I understand Croatia
19 know whether you made any such statement, whether you limited the
20 immunity. But the limitation is accepted only to a certain level and
21 would still and always include freedom from -- exception from legal
23 Would you like to add anything to your previous -- to your
24 previous observations, in light of Article 23?
25 MR. MARKOTIC: [Interpretation] Your Honour, this is a complex
1 issue. However, I'd like to refer to Article 34 of the Constitutional
2 Law of Croatia
3 paragraph 2 which states:
4 "Employees of the office of the ICTY in the Republic of Croatia
5 and other employees of the ICTY who are not citizens of Croatia enjoy
6 immunity and privileges in keeping with Article 6, paragraph 22, of the
7 convention on the privileges and immunities of the UN, dated the 13th of
8 February, 1946, if, through agreement of Croatia
9 of immunity and privileges is not resolved in a different manner."
10 I'm not familiar with any other solutions. Therefore, we believe
11 that this Article of the constitutional law should it be applied. By
12 analogy, perhaps we can interpret the agreement on the privileges and
13 immunities of the ICC, the permanent court, but the constitutional law is
14 very clear on this, and we have to abide by it.
15 JUDGE ORIE: Yes, let's then -- do you consider Defence counsel
16 to fall within the category of other employees -- or, you say are not
17 citizens of -- yes, you exclude citizens of Croatia from any kind of
18 immunity, in relation to the ICTY; whereas, in relation to the ICC, you
19 take a different position by -- I don't know whether there's any
20 legislation implemented in relation to the ICC. But at least Article 23
21 of the agreement on the privileges and immunities require you to make a
22 different choice.
23 MR. MARKOTIC: [Interpretation] In that case we are talking about
24 the International Criminal Court, which is binding, since we are a
25 signatory to the Rome Treaty as well as all other documents pertaining to
1 the ICC.
2 All other provisions in terms of the ICC refer to the ICC itself.
3 In this case that we are discussing, there is a separate constitutional
4 law prescribing only cooperation with the ICTY, because, at that time,
5 there was no possibility to ratify any ICC Statutes because they were not
6 in existence. At that time we had the provisions we had, and that the
7 constitutional law.
8 What I'm trying to say is that this is why such things are raised
9 in the first place, that the issues of immunities and privileges with
10 certain international organisations and missions, particularly of the UN,
11 is something that is usually regulated through a separate agreement. We
12 did so for the employees of the ICTY in Croatia. We put the
13 constitutional law in place, and this is an ICC matter which came on the
14 agenda later. And for the time being we see it as two different matters.
15 JUDGE ORIE: Thank you for that answer.
16 I'd like to move to my next issue; that is, if there would be
17 immunity. Mr. Misetic, in one of your submissions you suggest that it's
18 the Trial Chamber that should waive the immunity. If I look at similar
19 situations, well, let's say, for example, the host agreement, there we
20 find that it's the Secretary-General of the United Nations who is the
21 only one who can waive immunity.
22 If we look at the -- this same agreement on the privileges and
23 immunities of the International Court which, of course, is not an UN
24 organ, we find that waiver in the case of counsel and persons assisting
25 Defence counsel, that the waiver is to be granted by the Presidency of
1 the ICC. I do understand that you consider waiver to be given by the
2 Trial Chamber, because it's best position to -- to assess the situation.
3 That apparently is not the solution chosen in the ICC.
4 Is there any other legal instrument or legal authority that would
5 support your views, which, of course, can create some dangers as well,
6 that if the Chamber is master over whether one of the members of the
7 Defence team could be prosecuted elsewhere for a crime, that also could
8 also be easily understood as an indication of whatever the decision will
9 be of bias or having an interest, or -- it mixes up matters as well. And
10 since you emphasise very much what would be the good reason to do so,
11 although only in the footnote, that is not a solution which is apparently
12 sought elsewhere and may meet some objections as well.
13 Do you have any further legal instruments or authority to support
14 your approach?
15 MR. KEHOE: Can I just consult?
16 JUDGE ORIE: Yes, you would say you're the legal authority who
17 has now consulted this --
18 Mr. Kehoe, that is fully accepted.
19 [Defence counsel confer]
20 [Trial Chamber confers]
21 JUDGE ORIE: Mr. Misetic.
22 MR. MISETIC: Mr. President, first let me state that since this
23 is a new issue, it may be that there is a better positioned authority,
24 first of all, within this Tribunal to decide issues of waiver. That may
25 be the president of the Tribunal; that may be the Registrar seeking to
1 contact the authority of the state and ask -- and invoking a diplomatic
2 immunity, and then the communication would go to the Registrar; it may be
3 some combination of them, and they being in contact with the
5 Our position, though, is that it has to be noted that the
6 immunities we're talking about flow from two different sources. The
7 Prosecution Chambers and ICTY staff by virtue of the Statute enjoy full
8 diplomatic immunity afforded to United Nations personnel.
9 The functional immunity of the Defence in this case flows from
10 the rights of the accused to a fair trial and to equality of arms and to
11 be able to call evidence in his favour as has the evidence been called
12 against him in the trial. To that extent, as we understand the Statute,
13 rights that flow from Article 21, first and foremost, are
14 jurisdictionally matters that are within the jurisdiction and competence
15 and -- I would go so far as to say mandate of the Trial Chamber under
16 Article 20, paragraph 1.
17 Now I think there an issue there about where these, this
18 functional immunity starts from, and to that extent, we think that the
19 Chamber, in this particular case, this being an issue of first
20 impression, is the body to decide in this case first and foremost whether
21 such functional immunity exists. If at a later date an issue -- or
22 within the same decision the Chamber has to decide for future control of
23 the use of functional immunity, that is the Registrar, the President, or
24 some other combination thereof. That is certainly something that we
25 wouldn't necessarily dispute.
1 However, I think in this case, what is at issue is not simply a
2 motion for the Chamber to start regulating functional immunity. What
3 we're saying is there is a real ongoing impingement upon the rights of
4 the accused that appears in front of this Chamber. The remedy we are
5 seeking is a restraining order against the Republic of Croatia
6 the -- on the basis that functional immunity exists.
7 The Chamber under Rule 54 and under Article 20 and Article 21 has
8 an obligation to issue a remedy to stop the ongoing impingement and
9 infringement upon the fundamental right. The remaining issues about the
10 overall scheme and how that would be regulated is perhaps something that
11 can be decided and regulated by another body. But in terms of the
12 restraining order to stop violating the rights of the accused, we believe
13 that is not something that the Secretary-General has competence to do,
14 first of all, under the Statute, doesn't have jurisdiction to do it. No
15 court in Zagreb
16 Registrar doesn't have jurisdiction to do it. And the President of the
17 Tribunal doesn't have jurisdiction to do it. The remedy can only come
18 from this Chamber to stop the violation. Again, how it is going to be
19 regulated over all is perhaps a separate issue.
20 JUDGE ORIE: I understand your position, Mr. Misetic. The reason
21 why we're going into this matter in quite some detail is because it is a
22 matter which is relatively new. And, in order to decide the matter, this
23 Chamber wanted to be sure that it fully understood the problem in its, I
24 would say, full legal context. That's the reason why we spent so much
25 time on it.
1 One final --
2 MR. MISETIC: If I may just add, Mr. President. Just again to
3 note, and I'm sure you are aware it, but assistant Secretary-General
4 Johnson in the last paragraph suggested that the Chamber be advised and
5 that the Registrar contact the Rwandan authorities in that case.
6 JUDGE ORIE: Of course, there was [indiscernible] in that case as
7 well, which makes it a bit different from the present case. And to that
8 extent, the fundamental observations are important, but the context was
9 quite different from the context we're in at that moment.
10 MR. MISETIC: Yes, it is. Thank you.
11 JUDGE ORIE: Yes.
12 Mr. Misetic, one question, and I would not spend that much time
13 on it, you have raised the issue of five other members of your team being
14 interviewed. It's not in your motion. We have heard the explanation
15 given by the Croatian representatives. What purpose these interviews
16 served, I do understand, not because there was a suspicion against those
17 persons but mainly an order to fully meet the request of the Chamber.
18 Now, my question to you would be: If, in such a -- what is
19 considered to be an administrative investigation, if questions would be
20 put to members of your team about their knowledge on where certain
21 documents that the Republic of Croatia
22 to the Tribunal, would you consider, under all circumstances, such an
23 interview? Again, I'm not talking about who is the boss, who is working
24 in what room, at what hours, is the telecopier used or not? But if they
25 would have knowledge, and they may have knowledge from any prior
1 employment as well, would you consider that, under all circumstances,
2 unacceptable or -- I know it is not part of the motion. The Chamber most
3 likely will not have to decide, but it has coloured, to some extent, it
4 your observations by saying, It's not just the Ivanovic issue, it goes
6 MR. MISETIC: Yes, Mr. President.
7 Since we've started this hearing, I have been e-mailed, for
8 example, one summons that was issued. And it is not, as far as can I
9 tell, an administrative proceeding. The person is advised that it is --
10 you are being called to give information about the crime of destroying or
11 hiding archival documents pursuant to Article 327 of the Criminal Code.
12 So --
13 JUDGE ORIE: That would be -- you would say a second Ivanovic
15 MR. MISETIC: Correct. Correct.
16 JUDGE ORIE: Whereas we heard, apparently, there is a difference
17 of a view on the facts where we heard that for at least a number of
18 persons it was mainly in the context of administrative investigation.
19 Again, that's not part of your motion.
20 MR. MISETIC: Because --
21 JUDGE ORIE: You raised it. I didn't ask you whether there was a
22 second Ivanovic case. I asked you whether under all circumstances you
23 would --
24 MR. MISETIC: Yes --
25 JUDGE ORIE: -- consider unacceptable, that --
1 MR. MISETIC: No --
2 JUDGE ORIE: -- people would be interviewed in the context of
3 such an administrative investigation.
4 MR. MISETIC: First let me clarify, I don't know what you mean by
5 "second Ivanovic case." It is other people, not Mr. Ivanovic, who are
6 receiving these summons. So that should be clear.
7 JUDGE ORIE: I thought, but I may have misunderstood you, that it
8 was about a person called as a potential witness or called as a potential
9 suspect or accused? That makes -- I understood it to be someone who was
10 also suspected ...
11 Let's not spend too much time on it because it goes a bit beyond
12 my question.
13 MR. MISETIC: Yes, in any event, just so you're aware,
14 Mr. President, these interviews are taking place within the last three
15 weeks, so that's why you haven't received anything on our pleadings on
16 this point.
17 But to answer your question, yes, they can be interviewed about
18 matters and knowledge about whatever factual knowledge they have that
19 falls outside of scope of employment. So if they were hired in 2009 and
20 became members of the Defence team within the last six months, they can
21 be asked questions about anything that took place prior to 2009 and any
22 information and knowledge they have.
23 If we're talking about their knowledge or information from within
24 the Defence team, then we would object to that and say that there is a
25 privilege under Rule 70 and an attorney/client privilege at issue.
1 Mr. Kehoe and I cannot have obligations under the Code of Professional
2 Conduct under the rules of this Tribunal with respect to both
3 attorney/client confidences, confidential information that we receive and
4 are under order to protect, all other types of information that perhaps
5 someone who is employed as staff has gained access to by virtue of their
6 position within the Defence that then we can no longer control, yet
7 remain responsible for. If someone were to say, General Gotovina told
8 Mr. Kehoe this, and X, Y, and Z follow, that's a violation of the
9 attorney/client privilege.
10 JUDGE ORIE: Yes. There seems not to be great dispute about
11 that. I'm also looking at the other parties. But now of course where it
12 comes to the -- [Overlapping speakers] ...
13 MR. MISETIC: I want to address the practical issue and real
14 issue, which is with respect to all of these issues concerning documents,
15 Mr. Markotic and I have been in regular communication in terms of trying
16 to resolve the issue of documents within the possession of the
17 Gotovina Defence. So it is superfluous from our view to suggest or to
18 then individually start calling in members of the Defence team when at
19 the level of the Ministry of Justice and the accredited attorneys in this
20 case, there is direct communication on those issues. We would submit
21 that since certainly the administrative proceeding is being conducted
22 pursuant to an order of this Chamber -- let's talk about the situation
23 where the Croatia
24 in possession of a document. It is very simple from our perspective.
25 The Republic of Croatia
2 the Defence, period. You asked for a chain of custody. They can give
3 you what they think the chain of command is. There is no need, as far as
4 we can see, for purposes of the Chamber's order to conduct a criminal
5 investigation or otherwise start interviewing members of the Defence
6 where the danger then becomes interviews that go beyond the scope of, Did
7 you see this document, do you have this document, et cetera, et cetera,
8 and moves into issues of, Who communicates with whom, who's responsible
9 for which portions of how the Defence is conducted, et cetera. Further
10 complicating it is those reports, as far as we know, or I should say most
11 of those reports are then turned over to the Office of the Prosecutor,
12 which we would assert right now is a violation of the work-product
13 privilege and the attorney/client privilege. But going beyond that, then
14 there is a remedy for the Prosecution or for the Chamber which is to then
15 litigate the issue as to possession of documents within the Defence.
16 I can advise you right now, that we have in detail responded to
17 the Republic of Croatia
18 Prosecution and Croatia
19 have conducted four thorough investigations of our files to find any such
20 documents. I have to state, because you, Mr. President, raised the issue
21 before, and I think it is a classic example of what the problem is here.
22 Mr. Ivanovic is charged with concealment of the Jagoda list. I
23 was going do rise before because that exactly encapsulates what the
24 problem is in this case. The Republic of Croatia
25 document is the document that was used as a list of targets. The
1 Prosecution in its most recent filing tells the Chamber that's not a
2 document that we're looking for. And so whether a document falls within
3 the scope of the OTP's request or not, in and of itself is the subject of
4 litigation between all the parties in this case.
5 So it's a quite complicated issue. We're prepared to litigate
6 the issue if front of the Chamber. But if your question is, to go back
7 to the original point, what can and cannot be asked, we suggest that the
8 functional immunity should apply for the duration of the function you
9 acquired information in scope of your employment to determination of the
10 function and information gathered in the course of the work of the
12 Outside of that, the person would not have a privilege or
13 immunity to say, I -- I had some information back in 1996, but I'm now
14 employed by the Gotovina Defence, and therefore I have immunity. We do
15 not suggest that, Mr. President.
16 JUDGE ORIE: Yes, now, one -- and that will be the last question,
17 and I will give all parties an opportunity to make further observations.
18 If I would be in your team, I would find on my desk a document of
19 which I know that everyone is looking for it, and there's a small note on
20 it. During a burglary yesterday evening, where I was seeking for money,
21 I found this what might interest you.
22 Would you feel to be under an obligation to hand over the
23 document to the Croatian authorities if you would know that they were
24 looking for it? Or would you consider this to fall -- to the note is
25 added, Don't tell anyone else. So that makes the provider, at least --
1 well, insisted, or I do not know, but at least pointed at some
2 confidentiality. If the Croatian government would ask you, Are you in
3 possession of such a document or if you would know that this was one of
4 the documents covered by a request for assistance, would you feel that
5 you would be under an obligation to hand over that document?
6 MR. MISETIC: If were stolen is that --
7 JUDGE ORIE: Yes, at least from the written note. You never know
8 whether people write the truth or not. But most likely, he found it as a
9 -- when committing a burglary.
10 MR. MISETIC: Let me answer that in two parts. Are we under an
11 obligation to disclose it? No. Have we disclosed that information?
12 Yes. So -- and I'm careful to point that out because if you go back and
13 read the Blaskic decision, sometimes people may be in possession of
14 evidence that -- for example, we're in what we consider the absurd
15 position that Mr. Ivanovic is under indictment for concealment of the
16 Jagoda list, but the person who had it for 12 years is not under
17 indictment. So the purpose of the criminal prosecution is -- or I should
18 the motivation is suspect but --
19 JUDGE ORIE: That is a matter which --
20 MR. MISETIC: Well, it is it relevant to this point, though,
21 Mr. President, which is -- and it has actually been relevant to how
22 things transpired since October of last year. Do we now compromise
23 witnesses and compromise the Defence by essentially exposing them to
24 criminal prosecution if they provide evidence to the Defence?
25 It's a complicated issue. It, first of all, exposes people to
1 criminal prosecution where we think that the objective of the Chamber's
2 order wasn't to have people criminally prosecuted, but was to obtain the
3 evidence relevant for the trial and to turn it over to the Prosecution.
4 So to that extent, I can tell that you I don't believe there is
5 it an obligation on the Defence under the Rules; nevertheless, we have
6 conducted four investigations to find whatever it is that Croatia
7 to find and turn over to the Prosecution. We have turned everything over
8 that we think even possibly could be construed as a document they are
9 looking for, knowing that they would react the way they did react which
10 was, This doesn't fall within the scope of our RFA. And, at this point,
11 as Mr. Markotic I'm sure will confirm, and we have in writing, we have
12 nothing else to seek absent more specific information that such a such
13 document was turned over to such and such a person on such and such a
14 date, et cetera. But as the Court will recall when Mr. Rajcic testified,
15 it will say one thing in an Official Note, the person comes and talks to
16 us or talks to the Chamber and says, No, I didn't say -- I can't remember
17 now if it was "work plan" or some other title of the document, and we
18 spend hours and days looking for something that in fact the witness says
19 he never turned over.
20 So in essence in -- to summarize, our efforts have been to not
21 have anything our possession that would fall within the scope of the
22 request that the Prosecution has filed. But we don't believe we had an
23 obligation to do what we did.
24 Thank you.
25 [Trial Chamber confers]
1 JUDGE ORIE: The Chamber has no further questions but would like
2 to give an opportunity not to summarize and repeat but, rather, to add
3 whatever is needed to be added to what has been said and what has been
4 submitted this morning. It has taken quite some time, I'm aware of that.
5 But it is an important issue; it is a new issue; and it requires full
7 I'll leave Croatia
8 the Republic of Croatia
9 Mr. Tieger, is there anything -- or Mr. Russo, I'm -- is there
10 anything you would like to add? And, again, it is not oral argument on
11 the matter. This was, I would say, an informative hearing. And if we
12 missed anything or if there is anything important you would like to add,
13 please do so.
14 MR. RUSSO: Yes, Mr. President. Three points very briefly, and
15 I'll take them in reverse order. The last issue which --
16 THE INTERPRETER: Could counsel kindly be asked to slow down when
17 speaking. Thank you.
18 MR. RUSSO: My apologies.
19 From our perspective, Mr. President, documents received by the
20 Gotovina Defence, information given to investigators of the Gotovina
21 Defence is not protected under Rule 70 (A). There is no property in a
22 witness, so for them to be asked what you were given, what information
23 you collected, what did a witness tell you, none of that is protected
24 under Rule 70 (A). And that goes to the argument being raised by
25 Mr. Misetic about what is or what is not appropriate, and what may or not
1 be impinging on their obligations to prepare a Defence.
2 JUDGE ORIE: It is a matter which was raised in the margin,
3 especially the last observations, in the margin of the motion which we
4 have to decide on.
5 Please proceed.
6 MR. RUSSO: Thank you, Mr. President.
7 The second point I wanted to make was, as you say, an
8 informational point. On the issue of what the actual infringement is on
9 the Gotovina Defence, it is my understanding that -- well, we can see,
10 obviously, Mr. Ivanovic is present here today. He is able to be at the
11 seat of the Tribunal. It is also our understanding that the proceedings
12 against him are adjourned until sometime in September when Mr. Misetic
13 will be the next witness to testify, so I don't see how, since the
14 proceedings is in fact adjourned, until that point, until the Defence
15 apparently decides to close its case, how that in fact can infringe on
16 the Defence's preparations for its case.
17 Finally, the issue, again with the argument being advanced by the
18 Gotovina Defence at -- in one sense, they seek the protections of
19 Article 30, subsection 4, but then attempt to rope in, by procedural
20 mechanism, the Trial Chamber through Rule 54 to act on Rule -- on
21 Article 30, when Article 30 doesn't in fact reference the rights of the
22 accused under Article 21. It doesn't track the language of Article 21.
23 It is an argument being advanced by the Gotovina Defence that the
24 protections of Article 30 can only be protected by the Trial Chamber
25 under Rule 54 which we -- our position is that is in fact not the case,
1 which is evident from a reading of both Article 30, subsection 4, and the
2 general Rule 54 which do not reference each other and for which, as the
3 Court has already determined, procedural mechanism exist in other
4 contexts, which would deal with the immunities provided under Article 30,
5 subsection 4.
6 Thank you.
7 JUDGE ORIE: Thank you, Mr. Russo.
8 Mr. Misetic, you have spoken already a lot of words so -- it
9 could be that you want to add something.
10 MR. MISETIC: I do, Mr. President.
11 Taking Mr. Russo's comments first. I take it that we should
12 again look at this as an equality of arms issuing, and I --
13 JUDGE ORIE: That is perfectly clear. I mean, Mr. Russo has
14 responded, but --
15 MR. MISETIC: Yes, but to take his point, whether the proceeding
16 has been adjourned or not is requirement, and I doubt very highly that
17 the Prosecution would be willing to expose it's investigators to criminal
18 proceedings if they took place after the trial, for example.
19 The issue is the rights of the accused to a fair trial, and
20 obviously criminal prosecution of investigators impacts the ability of
21 the Defence to properly function.
22 Secondly with respect to the Article 30 argument, Article 30 on
23 its face says that persons shall enjoy -- it talks about for the proper
24 functioning of the Tribunal, Mr. President, we think that protection of
25 the rights of the accused is certainly one of the proper functions of
1 International Tribunal and the Chamber is once again tasked under
2 Article 20 with issuing such orders as are necessary to ensure the rights
3 of the accused.
4 Third, with respect to the Rule 70 issue, Mr. Russo ignored work
5 product issues. And obviously once a person goes in for a an interview,
6 that person's ability to recognise what is work product, what is
7 attorney/client matters, and what is basic information becomes blurred.
8 And to that extent, that is our concern with simply allowing Defence
9 personnel to be interrogated about information they obtained as members
10 of the Defence, just as I'm sure that the Prosecution would object to
11 Mr. Foster or anyone else being interrogated about basic information that
12 Mr. Foster may have obtained while interviewing witnesses.
13 Mr. President, in summation, I wanted to just briefly state that
14 how all of this transpired, I think it is important for the Chamber to
15 remember that prior to Mr. Ivanovic's indictment, I had communications
16 with the Croatian government regarding an allegation that had been made
17 that Mr. Ivanovic was in possession, unlawful possession of certain
19 Now, to that end, and the Chamber already has the correspondence
20 in its possession, that is in the ex parte filing from, I believe, the
21 1st of December 2008. Let me check that. I'm sorry, it is -- the date
22 on it is the 28th of November, 2008. There is correspondence from
23 that --
24 JUDGE ORIE: Mr. Misetic, if you read on your screen.
25 MR. MISETIC: Yes.
1 There is correspondence concerning our efforts to resolve the --
2 whatever dispute there was at the time about unlawful possession of
3 documents. The first point that needs to be made is Mr. Ivanovic is not
4 in possession per se of documents. The Gotovina Defence is in possession
5 or accumulates documents. And it is only accredited counsel before this
6 institution that can and will make decision about when and how documents
7 are disclosed pursuant to our obligations under the rules and Code of
8 Professional Conduct here. So that extent, first of all, he is not in
9 possession of anything.
10 Second, in our efforts it should be noted that we attempted to
11 give the Republic of Croatia
12 four sets of documents that were at issue at that time prior to the
13 indictment. We disputed that we were in possession of those documents in
14 the sense that, for example, one of the documents for which Mr. Ivanovic
15 has been charged is the personal diary of Mr. Kardum it was posed to that
16 was in fact a war diary of Mr. Kardum. We responded by saying, It is not
17 a war diary; it's a personal diary. Nevertheless, we allow you to come
18 to our office to inspect it to decide for yourselves.
19 Despite our efforts, first of all, Mr. Ivanovic ultimately was
20 indicted for possession of what turned out to be the personal diary,
21 despite the fact that we had offered the opportunity for Croatia to --
22 prior to an indictment assure itself that it wasn't the war diary.
23 Secondly, Mr. Ivanovic was indicted for concealing the Jagoda list
24 despite the fact that prior to his indictment, Croatia had never
25 indicated that that was a document they considered to be unlawful in his
1 possession. So we never had the opportunity to know that they believed
2 that was a document that was the subject of a RFA. And again as it turns
3 out, the Prosecution has advised the Chamber within the last few days
4 that it isn't a document that falls within the RFA.
5 JUDGE ORIE: Mr. Misetic, I earlier emphasised to Mr. Russo that
6 this was an informative meeting. Many things that you have said over the
7 last couple of minutes are, of course, already known to the Chamber.
8 MR. MISETIC: Okay.
9 JUDGE ORIE: We know our filings. It sounds a bit more as final
10 argument or final pleading, rather than to add anything to what we heard
11 and what we have read in written submissions.
12 MR. MISETIC: Okay, then let me finish on this point,
13 Mr. President, which is that in considering this motion, it should be
14 recognised that we have at all times attempted to cooperate in -- in
15 locating these documents. The indictment, itself -- and I won't go into
16 it any further unless the Chamber is -- is interested in it. The
17 indictment itself wound up complicating the relationship between the
18 Gotovina Defence and the Republic of Croatia
19 resolution of some issues.
20 Thank you.
21 JUDGE ORIE: Thank you.
22 Mr. Markotic, or Mr. Cule, or Mr. Crncec, or Ms. Pokupec, you're
23 all four here, would you like to address any matter which, in your view,
24 has not been sufficiently addressed or should be approached from a
25 different perspective? You will be the last to address the Chamber.
1 MR. MARKOTIC: [Interpretation] Thank you, Your Honour.
2 Well, we have discussed a very complex issue here today, both
3 from the aspects of international law and domestic jurisdiction. What we
4 think is the essential point here is to state that Croatia started an
5 investigation into the missing documents on the basis of a Trial Chamber
6 decision. And we have done our best to fulfil those guidelines and
7 instructions. And we do believe we have done that. And during our
8 administrative investigation, we heard some 200 people and came to the
9 knowledge that there was justified suspicion that certain crimes were
10 committed with respect to the documentation which was the property of the
11 Republic of Croatia
12 On that basis the state attorney's office as the relevant body in
14 suspicions were justified or not. We are convinced that the executive
15 bodies and the Court bodies and judiciary and state attorney offices did
16 act within frameworks of their authority, respecting our international
17 obligations at all times, because we took it upon ourselves to cooperate
18 with the Internation Tribunal, which is what we are doing. And we also
19 feel that we have undertaken everything that is incumbent upon us on the
20 basis of international law and domestic law, and that this is incumbent
21 upon all state bodies of Croatia
22 So we have complied with all that.
23 In conclusion all I can say is this. We have done absolutely
24 everything to establish the facts and the real truth about the missing
25 documents. So as to fulfil the demands placed upon us by the
1 Trial Chamber and the criminal proceedings under way at present, as to
2 that, we're going to look at all the facts which are established and then
3 make the relevant decisions and ascertain the way things actually stand.
4 So that is what I wanted to emphasise once again on behalf of the
5 state of Croatia
6 Thank you.
7 JUDGE ORIE: Thank you, Mr. Markotic. Any of the other
8 delegation members? If not, this -- we're about to conclude this
9 hearing. I would like to state clearly for the record that the issue of
10 this hearing was not whether Croatian -- Croatia, the Republic of Croatia
11 had met the orders of this Trial Chamber. That's a matter which was not
12 the subject of our discussion, although it apparently played a role in
13 the margin of a matter that was raised by Mr. Misetic about ongoing
14 interviews. The subject matter of this hearing was primarily whether or
15 not there are legal obstacles against procedures -- proceeding against
16 Mr. Ivanovic. That was the subject, and I think we have explored that in
17 full detail. The Chamber will further consider the matter in all its
18 aspects, procedural aspects, substantive aspects, international law,
19 domestic law. We have to consider everything, but whatever the outcome
20 will be, whether there are be a restraining order or whether there will
21 be no restraining order, self-restraint never damages.
22 We adjourn, although there would be some procedural matters which
23 would take five or seven minutes. But I would rather not ask you to come
24 back for that. We can find five or seven minutes soon.
25 Therefore, we adjourn, and we resume -- no, but not after I've
1 thanked you for coming this very long way and informing the Chamber on
2 very important aspects. Perhaps, we would even -- I think we can find it
3 in our library, your Constitutional Law on Cooperation. I've looked at
4 it before. So that's the only reason why I'm not inviting you to give it
5 to us, because as the old Latin adagium tells us, that the Court knows
6 the law, at least we're able to find this law in our library, whether
7 that is always true, that the Court knows the law, is another matter.
8 But I'd like to thank you, and we'll seriously consider whatever has been
9 submitted to us, and I wish you a safe trip home again.
10 We adjourn until Tuesday, the 30th of June, 9.00 in the morning,
11 Courtroom I.
12 --- Whereupon the hearing adjourned at 12.46 p.m.
13 to be reconvened on Tuesday, the 30th of June,
14 2009, at 9.00 a.m.