Tribunal Criminal Tribunal for the Former Yugoslavia

Page 19365

 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

19     hearing.

20             We scheduled the hearing today to receive further information in

21     relation to the motion for restraining order against the Republic of

22     Croatia, pursuant to Rule 54.

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

Page 19366

 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.

Page 19367

 1             I'm informed that the delegation of the Republic of Croatia has

 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 for this hearing which we

 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, pursuant to Rule 54.

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 Tribunal.  He is dislocated sitting over there.

25             THE INTERPRETER:  Could the speakers to kindly be asked to speak

Page 19368

 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

 5     say.

 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 should not proceed against Mr. Ivanovic because

14     Mr. Ivanovic, as is put by the Gotovina Defence, enjoys functional

15     immunity.

16             Now, this Chamber has received a letter by the Republic of

17     Croatia sent to this Chamber, dated the 27th of April, 2009, where we

18     read in the heading, Written arguments of the Republic of Croatia in

19     connection with the request of indictee Ante Gotovina that the Republic

20     of Croatia issues a court order forbidding certain procedures.

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 in relation to immunity?  You have

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

Page 19369

 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 has a

 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 in

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

22     Croatia and as speak about the immunity enjoyed by the top leaders 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 do not enjoy any

Page 19370

 1     kind of immunity.  As far as a separate law is concerned that we have in

 2     the Republic of Croatia, a specific law, it is the constitutional law on

 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 enjoy a special benefits and immunities provided

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, no -- none of the accused persons referred to their right to

25     immunity or called upon their right to immunity.  It is customary that if

Page 19371

 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.  We would state, for example, if

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, that that would preclude the

25     Tribunal from taking any measures under Rule 54, nor -- and that would in

Page 19372

 1     effect concede that a court in Zagreb could find that a member of the

 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 is basically a waste of time because I think we

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, he stated that he was precluded from

22     testifying by some decision of this Chamber, if the Court will recall.

23     What the judge in Zagreb did was did not decide the issue of whether

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

Page 19373

 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, that is essentially what's going to happen because there is

 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

13     court.

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 but

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

Page 19374

 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 that Defence counsel

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 is clear.  Our job is

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

23     inaccuracy.

24             Yes, Mr. Cule, please proceed, proceed.

25             MR. CULE: [Interpretation] Yes, I will proceed.  It is the

Page 19375

 1     criminal section and crimes committed in the territory of the Republic of

 2     Croatia so the laws valid in Croatia are applied, both in material terms

 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.  And

 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 fully complies with all the

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?

Page 19376

 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

 6     Croatia during the period of the indictment.  We are of the opinion that

 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

10     indictment?

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.  Is that

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 when people

19     outside the circle I referred to previously are concerned.

20             JUDGE ORIE:  You say, Wherever they may have immunity, not on our

21     territory.

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, isn't it?  That is, finding witnesses, finding documentary

25     materials, et cetera.

Page 19377

 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

 9     Croatia can then take a whole spectrum of measures, whatever they deem

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

Page 19378

 1     according to the regulations in place in the Republic of Croatia, such

 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

Page 19379

 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, the issue of immunity was not raised.  The

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.

Page 19380

 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, first and foremost would presuppose that

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 were

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, at what point would Mr. Ivanovic -- I should

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

Page 19381

 1     fundamental rights and to issue all orders that are necessary to do that.

 2             The Courts of the Republic of Croatia are not charged with

 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.  That protection of

 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 which does not have jurisdiction over Ante Gotovina or

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

23     Croatia, so if I have, I apologise in advance.

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

Page 19382

 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 pursuant to an agreement reached between the Republic

 4     of Croatia and the ICC in 2003.  So the issue is not whether Croatian

 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

Page 19383

 1     Republic of Croatia in which it is regulated now any searches and

 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

11     may.

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 is compelling police interviews of virtually every member of

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 that its continuing

Page 19384

 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

23     police.

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

Page 19385

 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

 4     witnesses?

 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

Page 19386

 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

13     regard.

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

19     is.

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 states that these

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

Page 19387

 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

Page 19388

 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.

Page 19389

 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 received a report from the

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

Page 19390

 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.  I just want to establish whether that happened

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

Page 19391

 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

 3     well.

 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

 6     Prosecution.

 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

10     answered.

11             Were questions put to those persons who were called for an

12     interview in relation to the internal dealings of the Gotovina Defence

13     team?

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

Page 19392

 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

18     ones.

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

Page 19393

 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 for them to provide the lacking

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

Page 19394

 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

Page 19395

 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

14     ICTY.

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 and the concealment

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,

Page 19396

 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 is

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

Page 19397

 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,

Page 19398

 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

Page 19399

 1     in Zagreb -- [Overlapping speakers] ...

 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, arguing that

 6     you should deny the motion because it is interference in the domestic

 7     matters of the Republic of Croatia.  If in fact, as you articulate, the

 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.  And

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,

Page 19400

 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

16     belongings.

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

22     Tribunal?

23             MR. RUSSO:  Yes, Mr. President.

24             JUDGE ORIE:  I will deal with that matter.

25             MR. RUSSO:  Thank you.

Page 19401

 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

Page 19402

 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.

Page 19403

 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

12     rights.

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

19     11.00.

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

Page 19404

 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.  In other words, when they

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 has been on notice since very early in

Page 19405

 1     2006, and we are in the process now of trying to retrieve a document or

 2     correspondence between the Republic of Croatia and Mr. Ivanovic.  We can

 3     advise the Court that in the ordinary process of obtaining documents from

 4     the institutions of the Republic of Croatia, for example, from the state

 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 has known almost from the beginning

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 who may receive documents from the Republic of

17     Croatia, but certainly most of the communication within Croatia between

18     the Gotovina Defence and the Republic of Croatia has taken place between

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

Page 19406

 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 for whatever other matters the

14     Republic of Croatia may have an interest in prosecuting.

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, that in writing 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 also has a

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

Page 19407

 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 acknowledges that there is no obligation to go deliver

 4     documents first to the Republic of Croatia, then the act of retrieving

 5     documents for purposes of these proceedings should enjoy functional

 6     immunity.

 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

23     Croatia or any other state would, of course, have the ability to petition

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

Page 19408

 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

 4     Netherlands under the headquarters agreement.  If there was some relevant

 5     evidence located within the Netherlands, and I broke into and entered a

 6     facility in the Netherlands, I have immunity theoretically under the

 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

Page 19409

 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, or is still a resident of

 6     Croatia?  We could ask Mr. Ivanovic, but I was unfamiliar with that, so I

 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

13     Netherlands, has residence in Croatia?

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, if he does something in Germany,

Page 19410

 1     they just expel him, they take him -- they withdraw his accreditation.

 2     He goes back to Belgium and, of course, Belgium could usually take

 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

 7     Tribunal.

 8             MR. MISETIC:  That --

 9             JUDGE ORIE:  Sending him to a -- or at least he performs his

10     duties on the territory of Croatia, he has his residence on the territory

11     of Croatia and, of course, the Tribunal has no power, no competence, to

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 do in that situation?

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

Page 19411

 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

Page 19412

 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

14     crime.

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

Page 19413

 1     the situation as we have had in the Republic of Croatia, and the

 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, he enjoys immunity in Germany.  If,

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

19     Greece or in his home country, Croatia, is it your position that, under

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

22     Italy or Turkey?

23             Is that your position?

24             Mr. Markotic.

25             MR. MARKOTIC: [Interpretation] Thank you, Your Honour.

Page 19414

 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, then that UN member -- the UN authority would be

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

Page 19415

 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 and the ICTY which would stipulate

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 has with the UN.  To the best of my

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,

Page 19416

 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

 6     solution.

 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

12     decision.

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:

Page 19417

 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

Page 19418

 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

 8     Croatia.  It is my firm stance that are no such legal sources which would

 9     bind the Republic of Croatia to implement them.

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 and the United Nations on the status of

25     the liaison office of the Prosecutor.

Page 19419

 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 may have with

 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 is also committed to the Statute of the Tribunal.

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

19     Croatia is committed to both the Statute and the liaison office

20     agreement, what remedies does Croatia have against a person who is both a

21     citizen and enjoys immunity?  And what I'm suggesting is that Croatia is

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

Page 19420

 1     investigations and has acquired evidence without going through official

 2     channels of the Republic of Croatia.  The question for Croatia is, Why is

 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 must proceed with seeking a waiver from the

24     Secretary-General presumably, if they deem that, in that hypothetical, a

25     crime has been committed.

Page 19421

 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 as to whether or not there will be a

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

Page 19422

 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 committed itself to a certain

10     situation, there they face the same problems they say are difficult to

11     handle.

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

22     resident.

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

Page 19423

 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

14     residents.

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 is a party as well.  Croatian -- I don't

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

22     process.

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

Page 19424

 1     issue.  However, I'd like to refer to Article 34 of the Constitutional

 2     Law of Croatia on Cooperation with the ICTY, and in particular

 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 and the ICTY, the issue

 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

Page 19425

 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

Page 19426

 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

Page 19427

 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

 4     Secretary-General.

 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.

Page 19428

 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.  That's

 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 or anywhere else has jurisdiction to do it.  The

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.

Page 19429

 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 is under an obligation to provide

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

Page 19430

 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

 5     further.

 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

14     case.

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 --

Page 19431

 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.

Page 19432

 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 and the Defence disagree about whether the Defence is

24     in possession of a document.  It is very simple from our perspective.

25     The Republic of Croatia files a report with the Chamber that says it is

Page 19433

 1     Croatia's position that such and such a document is in the possession of

 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's request with respect to documents that the

18     Prosecution and Croatia think or have reached an agreement exist.  We

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 asserts that that

25     document is the document that was used as a list of targets.  The

Page 19434

 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

11     function.

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 --

Page 19435

 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

Page 19436

 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 wants

 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]

Page 19437

 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

 6     understanding.

 7             I'll leave Croatia the last possibility to the representatives of

 8     the Republic of Croatia, the opportunity to speak last.

 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

Page 19438

 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,

Page 19439

 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

Page 19440

 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

18     documentation.

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.

Page 19441

 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 information about, I believe, there were

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

Page 19442

 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 and actually stalled

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.

Page 19443

 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, the archive documents of the Republic of Croatia.

12             On that basis the state attorney's office as the relevant body in

13     Croatia ex officio launched proceedings which will show whether those

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

Page 19444

 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

Page 19445

 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.