1 Friday, 11 December 2009
2 [Open session]
3 [The accused Cermak entered court]
4 [The accused Gotovina and Markac not present]
5 --- Upon commencing at 2.07 p.m.
6 JUDGE ORIE: Good afternoon to everyone in and around the
8 Mr. Registrar, would you please call the case.
9 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to
10 everyone in and around the courtroom. This is case number IT-06-90-T,
11 the Prosecutor versus Ante Gotovina. et al. Thank you.
12 JUDGE ORIE: Thank you, Mr. Registrar.
13 A special welcome to you Ambassador Paro, I do understand, and
14 Mr. Cule, a special welcome to you. The Chamber highly appreciates that
15 you were able to attend this hearing, although notice had been given only
16 yesterday evening that we intended to have this hearing. That's highly
18 Before we go to the substance of this hearing, I first want to
19 establish that Mr. Cermak is present. Mr. Cermak, yesterday, we briefly
20 discussed that counsel would not be there but you were all in agreement
21 that we could proceed even in the absence of counsel. I see you're
22 nodding yes, so that's on the record.
23 I also see that Mr. Gotovina and Mr. Markac are not present in
24 court. Let me just see. I should have received two notices, I will get
25 them on my screen so that I can look at them.
1 Here I have a form, absence from court due to illness, although
2 it's not about illness, that stating that Mr. Gotovina has discussed the
3 matter with his counsel, that he understands that he has a right to be
4 present but that he waives this right. And on the second page, unlike
5 yesterday, there's no further explanation of the present situation.
6 Mr. Misetic, would you like to add anything or would you just
7 leave it as it is it.
8 MR. MISETIC: Mr. President, I can just confirm that we have
9 discussed it and the circumstances from yesterday remain unchanged.
10 JUDGE ORIE: Which means that you are still instructed to
11 participate in any hearing on procedural matters, as are scheduled for
12 this afternoon.
13 MR. MISETIC: That is correct, Mr. President.
14 JUDGE ORIE: Yes.
15 Mr. Mikulicic, let me just check the other form.
16 Same form. The box that Mr. Markac has discussed the matter with
17 counsel is ticked. The waiver box has not been ticked. There are no
18 further comments on the second page.
19 Mr. Mikulicic, would you like to add anything.
20 MR. MIKULICIC: Your Honour, there's not much to add. I had a
21 telephone conversation with my client this morning, and he is in the same
22 position as he was yesterday.
23 JUDGE ORIE: Thank you for that information.
24 MR. MIKULICIC: Thank you.
25 JUDGE ORIE: I'm just checking whether all the information I
1 should have and sometimes comes in only one or two minutes before the
2 hearing, whether I've seen it all, and that is what takes me a second.
3 Yes, then, having dealt with these formal matters, the Chamber
4 has received a response filed by the Prosecution, a response to the
5 written motion, the motion to issue a subpoena for -- in order to ensure
6 the attendance of Mr. Brammertz on the hearing on the 16th of December.
7 That is, next week, Wednesday.
8 As I said before, the Chamber wants to focus primarily on the
9 requests to freeze the present situation, and -- but, is, of course, is
10 looking forward, also, because the matters are not entirely unrelated to
11 what we could expect on the 16th of December.
12 Now, it was suggested by the Gotovina Defence that Mr. Bajic
13 would be in the delegation which would represent the Croatian government
14 on Wednesday. You may have seen that. I do not know whether you have
15 already considered the composition of the delegation for next Wednesday.
16 If so, we'd like to hear now already who will be on the delegation.
17 Could you please activate your microphone when you speak.
18 Yes, Mr. Paro.
19 MR. PARO: [Interpretation] I am the Ambassador of the Republic of
21 However, I can answer immediately that my government is not opposed to
22 the presence of Prosecutor Bajic to the hearing on the 16th of December.
23 JUDGE ORIE: Yes, and -- then, Mr. Bajic, is it the intention of
24 your government to make him a member of the delegation or ...
25 MR. PARO: Well, according to what I said, we have nothing
1 against that so he has to be approached and then he would know.
2 JUDGE ORIE: Well, we invited primarily, of course, the
3 government to appear and not individuals; although, it has been suggested
4 that we could do so. But, of course, if you have already the intention
5 to -- for him to be on the delegation that represents the Republic of
7 be considered.
8 MR. PARO: So -- if the Court wishes, you can invite him and we
9 have no objections on that. I suppose that he would turn up.
10 JUDGE ORIE: Yes. Nevertheless, I would invite you to -- perhaps
11 to consult with -- perhaps it is you yourself who composes the
12 delegation. Whether -- even without an invitation that he would be here
13 anyhow because he would be a member of the delegation, that would save us
14 even to consider to write him a letter and in what way to do that and how
15 to communicate with him.
16 Mr. Tieger.
17 MR. TIEGER: Your Honours, stop me if this is not a helpful
18 intervention, but based on my understanding of the thrust and purpose of
19 the hearing of December 16th, it appeared to an inquiry into the results
20 of the administrative investigations with specific focus on documents
21 that were produced, documents that were not produced, documents that
22 remain in dispute, in contrast to anything having to do with efforts by
23 the judicial authorities or judicial investigation, and maybe that's a
24 bit of the confusion here. I would have been surprised if anyone outside
25 the administrative investigation would have been part of that process.
1 JUDGE ORIE: Mr. Tieger, perhaps I should have informed the
2 parties that the chamber is considering, at this moment, to extend the
3 scope of that hearing. The matters, as I said before, are not totally
4 unrelated, so therefore the Chamber is considering that and that's the
5 reason why I'm inquiring in these matters. And apart from that,
6 existence of documents, logic, we'd like to have as much expertise
7 available as possible, and I do not intend at this moment to further
8 elaborate on this matter, but I was just inquiring whether the Republic
9 of Croatia
10 delegation is concerned. And the Chamber took note well of the
11 observations made by the Prosecution in this respect in the submission of
12 this morning, and we'll also consider whether that matter was something,
13 although introduced in a motion, whether that was a matter which really
14 was a response to what seemed to be the core of that motion; which was
15 subpoena to be issued against Mr. Brammertz.
16 But it can be understood, since that matter apparently as a side
17 issue was introduced in the motion, so, therefore, it's understandable
18 that you at least reacted, responded to that.
19 MR. MISETIC: Mr. President.
20 JUDGE ORIE: Yes.
21 MR. MISETIC: I'm sorry to interrupt.
22 This may be an opportune time, though, to advise the Chamber that
23 we did also obviously review the Prosecution's response. We have,
24 whenever the Chamber finds it convenient, and with your leave we would
25 like to address some of the matters raised there, and in particular
1 because I think it is related to what Mr. Tieger raised, which is whether
2 is there is a connection between what the initial purpose of the hearing
3 was on the 16th and our motion, and I think can explain that with the
4 Chamber's leave at the appropriate time.
5 JUDGE ORIE: Yes. As I said, at this moment, we are focussing on
6 a different matter, and I never had the impression that if you would be
7 given an opportunity to respond to certainly these matters that you would
8 remain silent, Mr. Misetic. We all too well know that are you only too
9 glad to respond to anything said in that response.
10 Mr. Ambassador, if you would have made up your mind as far as the
11 composition of the delegation is concerned would you inform us. If that
12 could be done this afternoon, that would be fine. If not, we'll consider
13 what to do.
14 One second, please.
15 [Trial Chamber and legal officer confer]
16 JUDGE ORIE: Yes. The hearing today was scheduled in response to
17 a written motion filed by the Gotovina Defence, as I said before, which
18 sought, through an order, to ensure the presence of Mr. Brammertz next
19 week, Wednesday. This motion was followed by several oral motions mainly
20 seeking cease and desist orders in various respects and the temporal
21 scope of those orders was not limited, but in the alternative it was said
22 that at least we should have a temporary order which would freeze the
23 present situation, and that's the focus of hearing this afternoon.
24 The Chamber thought it wise when the -- when it invited the
25 Registry to get in touch with the representatives of the Republic of
2 otherwise, we -- the Chamber feared that the representatives of Croatia
3 would -- would not even know what they were called for. The letter in
4 which an invitation is put on paper and a very short annex setting out
5 with hardly any detail what the basis is will be filed, or is filed
6 already, so that the parties will know under what terms the
7 representatives of Croatia
8 before coming to this courtroom.
9 Now the factual background which is not set out in any detail in
10 the annex to the letter is the following. That, already for some time,
11 the Prosecution of Mr. Ivanovic for concealing and/or destroying archival
12 material is the subject of -- has been the subject of motions and some
13 decisions. The main topic in that litigation is immunity.
14 Last Thursday, the Chamber was informed that -- by the Gotovina
15 Defence, and I'm not giving any opinion about to what extent the
16 information is accurate or not, but that Mr. Ivanovic had been deprived
17 of his liberty. That was on Thursday. The Chamber was, yesterday,
18 informed that he is not deprived of his liberty anymore at this moment.
19 He was released yesterday.
20 The Chamber further was informed that searches were conducted and
21 material was seized, including computers, in the law offices in which the
22 Gotovina Defence works, and also outside those law offices. That is to
23 say, two computers that were in the possession of two members or former
24 members of the Gotovina Defence team travelling to Zagreb, and that these
25 two computers were seized as well.
1 The specific concerns raised in this respect were a violation of
2 legal privilege. That is, the privilege of confidentiality of
3 communication between counsel and accused. Second issue which was raised
4 was the risks that any of those materials seized would contain material
5 which was under an order by this Tribunal to be kept confidential.
6 These were the two concerns, in addition to the earlier litigated
7 and that litigation has not yet finished, litigation about the immunity
8 for Mr. Ivanovic, and the question whether he enjoys such immunity as a
9 member of the Gotovina Defence team.
10 Apart from the concerns expressed by the Gotovina Defence, in
11 view of their work and the members of their team, the Markac defence
12 brought to the attention of the Chamber that one of the members of their
13 team allegedly had been, as it was said, discussed. I do not know
14 exactly in what context and for what purpose. But, therefore, he joined
15 in the concerns, although less specific and less concrete at that moment,
16 expressed by the Gotovina Defence.
17 The first thing the Chamber would like to hear is whether there
18 are any factual updates to be made, in relation to the information the
19 Chamber received yesterday.
20 Is there anything, Mr. Misetic, you would like to bring to the
21 Chamber's attention, updating us on the factual information?
22 MR. MISETIC: Mr. President, nothing, other than, as the Chamber
23 is aware, there was supposed to be a hearing this morning in
24 Mr. Ivanovic's case. That hearing did in fact proceed and is now
1 JUDGE ORIE: Yes.
2 Anything the Prosecution would bring to the attention of the
3 Chamber from a factual point of view.
4 MR. TIEGER: No, Your Honour.
5 JUDGE ORIE: Thank you.
6 Then I may have a few questions for the representatives of the
7 Republic of Croatia
8 Yesterday during the hearing it -- it -- there was no -- no solid
9 information about the searches and the seizures. The Chamber asked
10 yesterday whether it was known in what context the searches had taken
12 Could you inform us as who authorised -- authorised the searches
13 and in what context they took place?
14 MR. PARO: [Interpretation] Your Honour, I have before me a
15 document which I believe addresses each of your questions, so if you will
16 allow me, I would like to read it for you.
17 JUDGE ORIE: Yes. And then we'll see whether we have any further
18 questions. But perhaps we find the answers already in the document you
19 will read.
20 Now, it is our experience that if someone starts reading, that
21 the speed of speech usually goes up which then causes problems for our
22 interpreters and our transcriber. So if you read take your time.
23 MR. PARO: I will have mercy on the translators.
24 [Interpretation] The Republic of Croatia cooperates with the
25 ICTY, based on the constitutional law on cooperation between Croatia
1 the Tribunal dating back from 1996 and based on other regulations. The
2 activities that are being taken place in view of complying with the
3 requests of the ICTY Prosecution, so far we have complied with 853 such
4 requests. We have complied with the order of the Trial Chamber dated
5 16th September 2008 to find the missing artillery logs pertaining to the
6 military and police Operation Storm, or, rather, to establish its lot.
7 As well as to finds the archival documents in the possession of the
8 Republic of Croatia
9 In order to implement the order of the Trial Chamber dated
10 16 September 2008
11 investigation and the Trial Chamber and the Prosecutor's office have been
12 informed in six detail reports, which provides explanation about all the
13 measures an actions that have been undertaken within the scope of this
14 administrative investigation.
15 As a result of the administrative investigation, or, rather,
16 since the results of the administrative investigation have found to be
17 insufficient on the part of the Prosecutor's office, and after the
18 meeting between the Prosecutor and the prime minister of Croatia
19 September 2009, a special inter-sectoral task force has been established.
20 The task force is headed by the head office of the police. The main task
21 was to eliminate any shortcomings and failures of the administrative
22 investigation, and also to find documents that is sought only not by the
23 OTP and the Trial Chamber of this Tribunal, but which are also sought by
24 the Republic of Croatia
25 Not to include them in its archives but -- because they are property of
1 Croatian archives.
2 [Interpretation] The task force has therefore drafted an action
3 plan and an analytical information as its working documents and as the
4 foundation for all the future actions. The task force has already
5 submitted a report on its activities on the 9th of November, 2009. That
6 report has been submitted to both the Trial Chamber and the OTP. In the
7 course of any future actions, the task force has inspected documents in
8 the operative administration of the armed forces of Croatia and the
9 central military archives and the task force has found the documents
10 which indicate the efforts of the Main Staff of the armed forces to
11 collect, protect, put in order and prevent any misuse of documents
12 pertaining to Operation Storm and also to Operation Flash. Those efforts
13 are reflected in the initial order by the Chief of the Main Staff dated
14 June 1998.
15 The task force, in its actions, has come by certain information
16 which represents the reasonable doubt as to the fact that certain
17 individuals might have committed crimes which are prosecuted ex officio
18 and that is why, on the 7th December, 2009, it was defined that police
19 investigation would be carried out in compliance with Article 177 of the
20 Law on Penal Procedure, as well as investigative actions in keeping with
21 Article 211 through 215, of the Law on -- of the Law on Penal Procedure.
22 After consultations in the State Prosecutor's Office of the
23 Republic of Croatia
24 and the State Prosecutor's Office in pre-trial and trial proceedings,
25 measures and actions were defined with a view to establish the custody --
1 the chain of custody of the documents and finding the documents which are
2 property of the Ministry of Defence and which was not in -- submitted to
3 the Main Staff in compliance with the prevailing regulations, and it was
4 not also -- it was also not filed with the central archives. All those
5 documents pertain to Operations Storm and Flash. Those measures also
6 apply to all the other documents that represent archival holdings and
7 also to establishing the crimes which are prosecuted ex officio, the
8 destruction and cover-up of archival holdings, pursuant to Article 327 of
9 the Penal Code of the Republic of Croatia
10 implementation plan, people were defined and interviewed. Official Notes
11 were made of all of those interviews.
12 The action plan also describes information which was obtained in
13 the course of those interviews and, based on that, in the follow-up of
14 all those interviews and reports, in -- in the investigation, additional
15 actions were undertaken in order to establish the task force, and those
16 additional actions are as follows: 16 searches of homes and business
17 premises; three searches of passenger vehicles; one search of a lawyer's
18 office; 32 interviews; several thousands of pages of different documents
19 have been seized and are now subject of an in-depth analysis by military
21 As regards Marin Ivanovic, as well as other individuals, in
22 keeping with Article 211 of the Law on Penal Procedure, the police
23 authorities have filed a proposal for the search of the apartments and
24 other premises, as well as of the vehicle to the municipal prosecutor's
25 office in Zagreb
1 Procedure, in connection with Article 213 and 214 of the same Law, the
2 Prosecutor's office has sent a proposal to the judge in the court in
4 and other premises, as well as the passenger vehicle. The order was
5 issued by the investigating judge of the county court in Zagreb.
6 On the 9th of December, 2009, on the 9th of December, 2009
7 11.35, in the territory of the police administration of Split and
9 to Article 95, paragraph 2, in connection with Article 102, paragraph 2,
10 of the Law on Penal Procedure, in order to implement the order -- the
11 previous order of the investigating judge of the county court in Zagreb
12 in order to carry out the search of the apartment of Marin Ivanovic, as
13 well as all of his movable property, i.e., of his passenger vehicles.
14 Likewise, when Marin Ivanovic was stopped, it was noticed that he is in
15 possession of three binders with documentation unknown to the arresting
17 On that same day, at 1930, Mr. Marin Ivanovic was brought by the
18 police officers of the administration of Split and Dalmatia
19 police administration of Zagreb
20 searched, the one that he was in at the moment when he was arrested.
21 Three binders were found with documents of military origin, and those
22 documents pertained to Operation Storm --
23 JUDGE ORIE: One second.
24 The issue at stake is whether such a search and seizure could
25 take place. Therefore, to describe what was seized, where it's still to
1 be considered whether the seizure and order search, in any way violated
2 any legal provision, seems not to appropriate to me at this very moment.
3 So I appreciate that you set out what happened, but then to describe the
4 content of those folders in public might not be something that the
5 Chamber expects you to do.
6 MR. PARO: Okay.
7 JUDGE ORIE: Please proceed.
8 MR. PARO: [Interpretation] A laptop was also seized. During the
9 search, it was sealed, and without a special order by an investigating
10 judge, that laptop cannot be switched on or searched. If I may be -- if
11 I may emphasise, that laptop was sealed in the presence of Mr. Ivanovic,
12 as well as of the investigating judge.
13 The search of the vehicle finished at 2250. The search of the
14 apartment, the other vehicle, and the lawyer's office was carried out on
15 the following day; on the 10th of December.
16 As the search of the apartment was carried out at his address in
18 a diary and several CD media and floppy disks.
19 When the other car was searched, no relevant documents were
21 The individuals parents' house was also searched in the territory
22 of the Split
23 Krstanica. During the search, no relevant documents were found. When
24 the lawyer's office in Zagreb
25 documents were found there.
1 It is hereby emphasised that the lawyer's office is used
2 exclusively by Mr. Ivanovic. It is by no means an office that is used by
3 the entire Gotovina Defence team.
4 The search of the lawyer's team [as interpreted] was carried out
5 by the investigative judge of the -- the search of the lawyer's office
6 was carried out by the investigative judge of the county court in Zagreb
7 Mrs. Jadranka Mandusic, in the presence of the Croatian Bar Association,
8 Mila Mikecin Misetic, keeping with the law -- provisions of the Law of
9 Legal Profession. After an interview, Mr. Ivanovic was released.
10 The Republic of Croatia
11 in undertaking all the activities during the administrative investigation
12 and during the activities undertaken by the task force, the
13 constitutional law has been fully compiled with. The constitutional Law
14 on Cooperation with The Hague Tribunal dating back to 1996, as well as
15 all the other Croatian relevant regulations. The same applies to the
16 activities undertaken by the task force which we have just described.
18 Prosecutor, Mr. Bajic, at the hearing on the 16th of December, should the
19 Trial Chamber deem his presence necessary.
20 As far as the alleged pressures on the part of the OTP on the
21 bodies of the Republic of Croatia
22 Trial Chamber the complete correspondence between the OTP and the
23 Croatian government, in order to shed even more light on the
24 communication between the two that exist -- that has existed so far.
1 activities, starting with the administrative investigation to the
2 activities of the task force, have been directed towards complying with
3 the order issued by the Trial Chamber on the 16th of December, 2008
4 well as the request on the part of the OTP of the ICTY to submit the
5 necessary documents, as well as the need for the Republic of Croatia
6 locate the missing archival holdings which are its property.
7 Thank you.
8 JUDGE ORIE: Thank you, Mr. Ambassador.
9 Well, you said that we'll find the answers in your statement.
10 Unfortunately, it's not entirely clear. You mentioned quite a lot of
11 legal instruments and some various purposes for seeking documentary
13 I see at least three options, at least options of these matters,
14 which were referred to by you in any way. The first is the ongoing
15 proceedings against Mr. Ivanovic; another option would be any new
16 investigation or any new proceedings instituted against Mr. Ivanovic; you
17 also quoted the Law on Cooperation with the Tribunal, but that could be
18 another purpose for search and seizure, at least potentially.
19 It is not yet clear to me in what procedural context the search
20 was ordered, was permitted. You said that there were orders sought and
21 orders received. Now, usually on an order you find a number and a name
22 of an accused. If it's a criminal -- or at least an investigation or
23 proceedings under penal law. In administrative matters you might find
24 something else. I do not how the cooperation with the Tribunal is
25 registered, by what type of proceedings. But I'd like to know exactly
1 what -- the context of what proceedings these search and seizures have
2 taken place.
3 MR. PARO: [Microphone not activated].
4 JUDGE ORIE: If you could please activate your mike.
5 MR. PARO: If you allow me, I don't consider myself sufficiently
6 expert on these procedural matters, but maybe Mr. Cule might help.
7 JUDGE ORIE: Are you assisted by him, so his assistance will
8 certainly be useful.
9 Mr. Cule.
10 MR. CULE: [Interpretation] Your Honour, my name is Josip Cule. I
11 am the Deputy of the Chief State Prosecutor of the Republic of Croatia
12 As for searches which have been mentioned in the statement read
13 out by Mr. Ambassador, these were searches ordered by the investigative
14 judge of the relevant court in the Republic of Croatia
15 please -- therefore searches can only be conducted by order of court.
16 There can be no searches without a court order.
17 JUDGE ORIE: Yes.
18 MR. CULE: [Interpretation] Let me clarify how these orders were
19 issued and how the searches were consequently conducted.
20 JUDGE ORIE: From your answer, I take it that these were searches
21 conducted in the context of criminal procedure or investigations
22 preceding -- so, penal law rather than administrative law. If that is --
23 MR. MISETIC: I got the impression that the witness -- the
24 witness, I'm sorry. That Mr. Cule would -- was about to explain -- and
25 my impression was somewhat different than your's, Mr. President, so
1 perhaps he could explain.
2 JUDGE ORIE: We will ask him to explain. But what I would like
3 to ask him is also to focus on not only the -- the general legal context
4 but also if we're talking about an investigation, that who is the suspect
5 in that investigation, or if it is proceedings taken against a person,
6 who is that person, and on what suspicion exactly, especially whether
7 it's the same subject matter as we have found in the pending case against
8 Mr. Ivanovic, or whether it's anything different from that, either a
9 different person or different events.
10 Please continue. I apologise for interrupting.
11 MR. CULE: [Interpretation] There are many questions so I have to
12 start with the last question so that what I said last would be made
14 There is one proceedings ongoing against Marin Ivanovic, and the
15 proposal of the indictment has been issued.
16 There is another proceedings ongoing against him, where the
17 county court in Zagreb
18 against him be carried out. These investigative activities were
19 requested on the 19th of November, 2009. What the Ambassador just spoke
20 about is relating to the new circumstances. Namely, the task force has
21 established new information that Marin Ivanovic could be in possession of
22 some more documents and, therefore, could have committed another crime
23 under Article 327 of the Penal Code. When the police has information of
24 this kind, then it has to carry out certain investigations when
25 proceeding further. So this is not yet criminal procedure. It is just
1 that there is certain suspicion. One of the activities that can be
2 carried out is also the search of an apartment or of premises or of a
4 In order for -- for it to be possible for a search to take place
5 and there is no criminal procedure as yet, the police addresses the State
6 Prosecutor's Office. The State Prosecutor's Office then assesses whether
7 there are sufficient elements in the proposal of the police which make it
8 likely that the investigation would yield some results; that is to say,
9 that certain documents might be found or not. The State Prosecutor's
10 office then requests the court to issue an order for the search of a
12 So this is still not criminal procedure. This is all part of
13 what we call preliminary investigative procedure. Once the court issues
14 the order to search an apartment, once the search is conducted, and once
15 the State Prosecutor's Office is informed about the results of the police
16 work, the State Prosecutor's Office will only then make a decision
17 whether criminal procedure would be initiated or not.
18 As for information on the basis of the data provided by the task
19 force, the police requested, I think, a total of a search of 19 premises
20 or was it 19 persons? But, in any case, the State Prosecutor's office
21 did not endorse all the proposals of the police. In one case, it was of
22 the opinion that the circumstances stated were not sufficient. So, in
23 this case, the police carried out some activities and then the State
24 Prosecutor's office and the court did so, all of that in connection with
25 new information found through the activities of the task force as
1 explained by the Ambassador in his statement.
2 JUDGE ORIE: So I do understand now that the searches and the
3 seizures took place in the recently initiated preliminary investigative
4 procedures, which are directed against Mr. Ivanovic.
5 Is Mr. Ivanovic the only suspect in that case or are there more
7 MR. CULE: [Interpretation] No, he is not the only one. There are
8 several persons. I believe that the report that has been submitted
9 mentions these persons individually, and I think that there are eight in
11 JUDGE ORIE: Yes. I'm primarily interested in whether or not
12 there are any other members of any of the Defence teams in this case
13 included in the other suspects.
14 MR. CULE: [Interpretation] Your Honour, have I the name of these
15 persons here. I don't know if I can read all these names of these
16 persons publicly. I have them here. It's a document which was submitted
17 to the ICTY. It's a report to the Trial Chamber and the Office of the
19 JUDGE ORIE: Dated?
20 MR. CULE: [Interpretation] I do not know if --
21 Dated the 9th of November, 2009.
22 JUDGE ORIE: It's mainly for you to consider whether or not it
23 would be appropriate to pronounce these names in public. I'm mainly
24 interested - and another way of dealing with the matter would be - that
25 Mr. Misetic could confirm or deny that there's any other Defence team
1 member involved.
2 Mr. Tieger.
3 MR. TIEGER: Before anyone considers the procedure of reading
4 those names out loud, I believe if I understand the date correctly that
5 information is already available to the Defence and the Court.
6 JUDGE ORIE: Yes. At the same time, of course, the Chamber has
7 asked the Republic of Croatia
8 always analysing the reports submitted in such a way that the
9 transparency in what we know and what we do not know is lost. We'll use
10 that material in accordance with the matters that are put to us; that is,
11 satisfaction or lack of satisfaction.
12 MR. TIEGER: I may have missed an exchange with you and
13 Mr. Misetic. I was just suggesting that rather than hear the names and
14 then compare it to members of the Defence team, that Mr. Misetic could
15 look at the report and then advise the Court whether --
16 JUDGE ORIE: If that was what you intended, I think I already
17 hinted at that possibility.
18 MR. MISETIC: Mr. President, it's 358 pages, so if I could ask
19 build Cule's assistance in finding the right page in the report, that
20 would be great.
21 JUDGE ORIE: Yes, of course.
22 MR. MISETIC: And the second thing just for -- just to be
23 cautious, the report itself, Croatia
24 don't discuss it in public session.
25 JUDGE ORIE: Yes, it is mentioned by Mr. Cule, and I think merely
1 mentioning it might not be prejudicial, but -- it's the -- if it's
2 confidential, then it's the interests of the Republic of Croatia
3 are in the foreground so ...
4 Mr. Misetic.
5 MR. MISETIC: Yes, I'm -- I'm confused --
6 MR. CULE: [Interpretation] Please allow me before we go on.
7 The document has been taken from me. I thought that it was for
8 the needs of the Court.
9 JUDGE ORIE: Well, what we wanted to do, as a matter of fact, is
10 to invite Mr. Misetic to check in that document whether he finds the
11 names of any other members of his team, and then it will be returned to
13 MR. MISETIC: Yes, but Mr. President, I obviously have a
14 problem --
15 [Trial Chamber and legal officer confer]
16 MR. CULE: [Interpretation] I think as far as I have seen from
17 this report, which has three or four pages, only one person is mentioned
18 as a possible former member of a lawyer's team. There is only one person
19 with such a note in this report, but we can see that immediately when
20 Mr. Misetic has it now and is reading it.
21 MR. MISETIC: Mr. President, I see two members of my team and a
22 third former member which is consistent with what happened on Wednesday.
23 I also note that the report is -- the caption of the report is
24 the same that was filed on the 9th November, but the information in this
25 report contains information about what happened on Wednesday as well as
1 the 7th of December.
2 So this appears to be something that is not yet filed with the
3 parties in this case.
4 JUDGE ORIE: The first purpose, that is, to identify whether
5 there are more members of the Gotovina Defence team involved, is herewith
7 I invite to you give it to Mr. Usher so that it can be returned
8 to Mr. Cule.
9 [Trial Chamber and legal officer confer]
10 JUDGE ORIE: Mr. Misetic, I do not know how familiar you are with
11 the composition of the Markac Defence team, but whether you found any
12 one, because we have a kind of a -- of a subsidiary concerns. But
13 perhaps that could be resolved also during the break.
14 MR. MISETIC: I would not speak for the Markac Defence,
15 Mr. President, because I don't know all of their members.
16 JUDGE ORIE: No, but that seems to be less on the foreground at
17 this moment. But I just do not want to forget about the interests of the
18 Markac Defence.
19 MR. KUZMANOVIC: Thank you, Your Honour.
20 JUDGE ORIE: Now, we have -- I have a few more questions.
21 16 searches of homes and businesses, as was reported. I
22 understood that to be the searches conducted a couple of days ago.
23 Now, homes and businesses, were that homes of any members of the
24 Gotovina Defence team, were they included, and if so were they also homes
25 and businesses of persons not being members of the Gotovina Defence.
1 MR. MISETIC: Yes, I just say --
2 JUDGE ORIE: Mr. Cule, if you would not mind Mr. Misetic, when he
3 is on his feet, it usually helps us, so, therefore, I don't want to be
4 rude to you, but first before asking you to answer the question to hear
5 what Mr. Misetic could add.
6 MR. MISETIC: Just -- I'm sorry to interrupt, Mr. President, in
7 light of the witness's -- again, I'm sorry, in light of Mr. Cule's last
8 response, he may not be aware of two of the individuals on the list. So
9 in addition to Mr. Ivanovic, we assert that Jozo Ribicic is a member of
10 the Gotovina Defence and Mr. Hucic is a former member of the Gotovina
12 JUDGE ORIE: Yes. You would say that allows -- that enables
13 Mr. Cule to answer the question.
14 Were there -- were the homes and businesses of Mr. Ribicic and, I
15 think it was Mr. Hucic, are they on the list as well?
16 MR. CULE: [Interpretation] I have the information of the persons
17 that have been mentioned as members of the Defence team, in addition to
18 what is mentioned in relation to Marin Ivanovic, the search of the
19 apartment of Zeljko Hucic has been carried out at the address in Zagreb
20 a certain address in Zagreb
21 search of the home, to call it that way, of Mr. Jozo Ribicic in Split
22 Simiceva street
23 seized. And on the basis of a separate order of the investigative judge,
24 the computer was also searched. To make this additionally clear, another
25 separate judge's order is needed for a computer search to be conducted.
1 As for other searches and other premises, I do not have
2 information whether any of these persons are members of any Defence
4 JUDGE ORIE: Yes. Or related to them, because I heard that the
5 parental home of Mr. Ivanovic was searched as well. So it might be
6 difficult at this moment to identify if there are any further family
7 relations involved.
8 MR. MIKULICIC: Your Honour.
9 JUDGE ORIE: Yes, Mr. Mikulicic.
10 MR. MIKULICIC: Maybe I would be of some assistance if I could be
11 able to see the list, just to inform the Chamber whether some of the
12 Markac team members is also ...
13 JUDGE ORIE: I leave it to Mr. Cule. If would you be willing to
14 give the list to Mr. Mikulicic, then that might resolve an additional
16 MR. CULE: [Interpretation] Thank you, Your Honour. I have no
17 doubts whether I can provide it to Mr. Mikulicic, because when
18 Mr. Misetic saw it, it would be very dangerous if I did not provide it to
19 my colleague Mr. Mikulicic.
20 JUDGE ORIE: Mr. Usher, would be please assist in temporarily
21 handing over the document to Mr. Mikulicic.
22 It was explained that in the search of the law firm that a
23 representative of the Croatian Bar Association was present.
24 Could you explain what the role of that is and whether there's a
25 legal basis for his presence during such a search?
1 MR. CULE: [Interpretation] When a lawyer's office is searched,
2 one has to meet the requirements of a special procedure. Namely, a
3 search of a lawyer's office has to be attended by the investigative judge
4 who issued the order for the search or another person designated by them.
5 Likewise, the Bar Association has to be informed, as the Bar Association
6 is going to send its representative, pursuant to the provisions of
7 Article 17 on legal profession.
8 In case the procedure is not followed, the evidence obtained in
9 such a way would be considered invalid.
10 JUDGE ORIE: Now, does that procedure apply exclusively when the
11 search takes place in the law firm; or would such a procedure also apply
12 if you find a lawyer on the street with his suitcase?
13 So would it apply to any seizure of matters, which are in
14 possession of a lawyer; or would it be limited to the premises where his
15 office is located?
16 MR. CULE: [Interpretation] The law is clear. It says when it
17 comes to the search of a lawyer, or a lawyer's office, which implies to
18 the physical search of a lawyer or their office, including vehicles and
19 other such things.
20 JUDGE ORIE: Does that mean that when the car of Mr. Ivanovic, in
21 which he transported, apparently, orders -- binders, and a -- and a
22 computer, that a representative of the Bar Association was present at
23 that moment as well?
24 MR. CULE: [Interpretation] At the moment when the vehicle
25 property of Marin Ivanovic was seized from him, it was sealed. And as
1 far as I know, it was transported on a special truck - I don't know the
2 exact name of the vehicle - all the way to the police station in Zagreb
3 in order to be searched in the prescribed way. Which means that it was
4 not searched on the spot and so far the -- the contents of the laptop
5 have not been searched, since there is still no order for such a search
6 in place.
7 JUDGE ORIE: And what about the apartments of the three members
8 of the Gotovina Defence team just mentioned? The searches in their
10 MR. CULE: [Interpretation] These are private individuals. And as
11 far as they are concerned, they are subject to the provisions of the Law
12 on Penal Procedure.
13 Whenever such a search is carried out, two persons have to be
14 present during the search, as well as the suspect, and the suspect has
15 the right to the presence of a lawyer.
16 And allow me to explain, because I am afraid that it has been
17 registered incorrectly in the transcript. When we are talking about
18 private individuals, about individuals who are not lawyers or members of
19 the legal profession, regular provisions of the Law on Penal Procedure
20 are applied in the way that I have just described, which means that only
21 one person of all of those who have been subject of this investigation
22 and searches only one, according to our information, is a representative
23 of the legal profession and that is Marin Ivanovic.
24 JUDGE ORIE: My next question would be: Does the legal privilege
25 extend to those who are employed and are directly involved in the work of
1 members of the legal profession? Secretaries, such people. Those who
2 are assisting the member of the legal profession in his activities, in
3 his professional activities.
4 MR. CULE: [Interpretation] Could you please clarify? Are you
5 referring to the privileges that are extended to the confidentiality
6 clause that applies to lawyers?
7 JUDGE ORIE: Yes. My question would be to -- to give an example,
8 that, if a lawyer asks his secretary to -- or someone else to assist him
9 in investigations, that person not being a member of the legal profession
10 himself but when he's carrying, for example, notes he has made of
11 interviews with potential witnesses or with the accused, or the suspect.
12 MR. CULE: [Interpretation] I have before me the Law on The Legal
13 Profession and in its Article 17, entitled search of lawyers and law
14 offices, and that Article does not mention anything about the personnel
15 in the lawyer's office. The Article only explains how lawyers and
16 lawyers' offices will be searched. But there is one part of the Article
17 that I'm going read from, and I believe that that part will be of some
19 When it comes to the search of a lawyer or a lawyer's office, the
20 confidentiality and secrecy of documents should not be violated or any of
21 the other objects at the detriment of the parties. At this moment, I am
22 not aware of the judicial practices as to how should the other persons
23 that you have mentioned in your question should be treated.
24 JUDGE ORIE: Let's, then, focus, to start with, on the seizure in
25 the law firm and the seizure of matters which were in Mr. Ivanovic's car.
1 Mr. Misetic, you were on your feet a minute ago.
2 MR. MISETIC: Yes just to give you an additional fact concerning
3 the car.
4 I am advised by Mr. Ivanovic that the -- I believe there was
5 reference to military documents in his car. Mr. Ivanovic advises me that
6 it's approximately 400 to 500 pages, all of them - every piece of paper -
7 was an OTP document with an ERN number on it and that the Croatian
8 authorities were advised. And as far as I'm concerned, they are still
9 subject to the Court's 14th July 2006
10 JUDGE ORIE: Yes, well, as you may have noticed I sought not to
11 further explore at that moment the exact -- the exact -- the content of
12 the material, because that would not lead us, at this moment, very far.
13 Mr. Mikulicic.
14 MR. MIKULICIC: Your Honour, slight intervention as it refers to
15 the transcript. Page 28, line 11. Mr. Cule cited the paragraph 17th of
16 the according law. And there was a word "stranka" mentioned in the
17 original Croatian language which was translated as parties. Although we
18 are not in possession like we used to be when witness is testifying, I
19 should emphasise that that word "stranka" in that context should be
20 translated as "client," not parties.
21 JUDGE ORIE: Yes. Whereas it also has the meaning of party,
22 "stranka," because I remember the name of one of the permanent parties in
23 the former Yugoslavia
24 Thank you.
25 Mr. Cule, you said that searches should not violate the legal
1 privilege. Now, who decides what falls within the scope of privileged
2 material and is not within the scope of the privileged material?
3 MR. CULE: [Interpretation] The results of the
4 research [as interpreted] or the result of the investigation and
5 everything that has been seized is in the hands of the court.
6 On several occasions, during each procedure the court takes
7 decisions on the validity of the evidence, and any of the parties may
8 challenge the validity of the search warrant, the minutes of the search
9 that was carried out, or the record of such a search. And it will be the
10 Court that will eventually make the decision on the validity of any of
11 the evidence.
12 There's also the right to appeal against all that, and any such
13 appeal, again, is decided by the court.
14 JUDGE ORIE: Yes. Now, if the court decides on the validity of
15 the evidence, may I then take it that the parties, both parties, have
16 access to that material already before the court gives any decision on
18 MR. CULE: [Interpretation] I'm not sure that I understood the
19 question properly. I will still answer, and then if there is something
20 missing from my answer, I suppose will you have additional questions.
21 The search warrant, before any action is taken, is handed to the
22 suspect in question and to his legal representative, if he has one.
23 The record of the search is signed, or not, if he doesn't wish to
24 sign it; the suspect, as well as the two persons who were present during
25 the search, and also the record is handed over to the suspect once it is
1 signed. Which means that throughout the entire procedure -- I suppose
2 that I have misunderstood the question after all.
3 JUDGE ORIE: Yes, I would like to focus my question. Perhaps by
4 way of an example.
5 You enter a law firm. You seize five binders. Now the lawyer
6 present says, Three out of these five is material which falls within the
7 scope of my legal privilege; that is, it is stuff I can confidentially
8 communicate with my clients and that is the stuff you will find in these
9 three binders. Binder number 1 are some articles I've ever written.
10 Binder 2 is my bookkeeping. But these three, are privileged.
11 Who then decides who looked into those binders to decide whether
12 or not they should be exempted from seizure? Because seizure would, or
13 might violate, the legal privilege.
14 MR. CULE: [Interpretation] I must admit, that I have never been
15 in a similar situation. When a search of a lawyer or his office takes
16 place, a judge has to be present. And always when a judge is present
17 during an investigative procedure, such as, for example, the site
18 investigation of a traffic accident, the judge has the final say.
19 If the judge says that something will not be seized, or that
20 something will not be carried out or done, I'm sure that it will not
22 JUDGE ORIE: Yes. But the mere presence of a judge, of course,
23 is not yet an answer to the issue. You said it never happened to you. I
24 must admit, that, in my past, I have been present during some searches
25 and it's not easy, especially in a law firm where you could expect a lot
1 of confidential communication to be in almost all of the files, to
2 identify what is protected by legal privilege and what is not protected
3 by legal privilege. The mere fact that a judge is there, who, I take it,
4 will not be able to go through the hard disks of all these computers, who
5 will not be able to go through all these files and read them all in all
6 -- in order to find out what is privileged material or not.
7 So, therefore, I hear your answer, but I still do not fully
8 understand, unless the situation is that a judge says, Well, is this
9 privileged? We leave it here, because you say so. Or, is it privileged
10 we'll, nevertheless, take it with us, because we could not just rely on
11 what are you're telling us.
12 I mean, the mere presence of a judge might not be the clue to
13 a -- to a observance of legal privilege in detail.
14 MR. CULE: [Interpretation] The presence of a judge also means his
15 duty. A judge provides the ultimate guarantee that a law will be
16 observed. A judge does not make his decision based on what somebody
17 says, but, rather, based on his own judgement about everything that he
18 has learned so far.
19 This is, indeed, a very difficult and hypothetical question as
20 well. And I believe that only a person who participated in an
21 investigation on site is in a position to tell you why they reached a
22 certain decision and why not another decision.
23 JUDGE ORIE: Yes. I'm rather not talking about -- not taking
24 responsibility for decisions. I'm mainly talking about impossibility of
25 checking a hard disk within perhaps even one day. That's my concern,
1 that if you would, in detail, review, whether a matter falls within or
2 outside the scope of a legal privilege, that that's perhaps very
3 difficult to be done on the spot.
4 MR. CULE: [Interpretation] I believe that that is one of the
5 reasons why a representative of the Bar Association has to be present as
7 JUDGE ORIE: I earlier asked you what exactly his role was. I do
8 understand that it's the judge who decides. What is the role of the
9 representative of the Bar Association?
10 MR. CULE: [Interpretation] I suppose that -- that he has to be
11 there as professional colleague who can also set boundaries of
12 confidentiality, and in that way, assist the judge, as it were.
13 JUDGE ORIE: Yes. Do we find the specific provisions for search
14 in law firms environment or lawyers? Do we find them in 211, 213, and
15 214? Because you quoted -- you mentioned these articles although it was
16 not entirely clear to me whether these articles were the specific ones to
17 protect privileged information or whether they were the articles which
18 would, in a more general way, give the proceedings -- give the procedure
19 for search and seizure.
20 THE INTERPRETER: Microphone for the ...
21 JUDGE ORIE: Could you --
22 MR. CULE: [Interpretation] The Law on Penal Procedure explains
23 the so-called regular procedure. And there is a special law, the Law on
24 Legal Profession, in its Article 17, which regulates the way searches are
25 carried out of a -- lawyers and their offices.
1 [Trial Chamber confers]
2 [Trial Chamber and registrar confer]
3 JUDGE ORIE: Could anyone, either you, Mr. Cule, or any of the
4 parties, assist the Chamber in providing Article 17 of this law?
5 It may be that --
6 MR. CULE: [Interpretation] I have it on me.
7 JUDGE ORIE: Well, if you could -- I take it that you have it in
8 your own language?
9 MR. CULE: [Interpretation] I will check. I may have it in
10 English as well.
11 JUDGE ORIE: Thank you, Mr. Cule.
12 [Trial Chamber confers]
13 MR. CULE: [Interpretation] Unfortunately, I don't have it in
14 English. I have it only in Croatian, and I'm sorry.
15 JUDGE ORIE: If, nevertheless, you could provide it to us, and I
16 take it that you have it electronically. But there are ways to send it
17 to the Registry perhaps so that we will find a solution for that -- a
18 practical solution for that soon.
19 MR. CULE: [Interpretation] Well, I can do it this very moment, if
20 somebody has a memory stick.
21 JUDGE ORIE: Anyone, or have you all lost your memory sticks as
22 is the tradition in many legal environments.
23 MR. MIKULICIC: Your Honour, I found it on the Internet, on the
24 web site, and I can send the link to Mr. Registrar so that will help.
25 JUDGE ORIE: Then we have it from two sources.
1 Nevertheless, thank you, Mr. Cule. But they've all lost their
2 memory sticks.
3 There is a very specific problem in the present context, which is
4 the following. From your words and from the context you have described,
5 I think we could not exclude for the possibility that you have in the
6 back of your mind that if you would find in any of the seized materials,
7 any document the Prosecution is seeking, that you will consider to hand
8 that over to the Tribunal.
9 Is that correctly understood?
10 MR. CULE: [Interpretation] Yes.
11 JUDGE ORIE: This creates the very specific problem of whether
12 the guarantees, the guarantees not to violate what is within the scope of
13 legal privilege, whether that would be construed and is regulated in
15 procedural terms, what the obligations are. That is, who defines what is
16 privileged; what are the consequences of any violation of legal
18 It is, as a matter of fact, a problem which is known from the
19 past, that if obtaining evidence or transferring evidence from one
20 jurisdiction to another is at stake, that the question arises whether the
21 rules are congruent, or are not congruent, which may have an effect on
22 the use of evidence. I'm expressing myself in very general terms at this
24 I'm asking this, because it may be clear that, as you reported,
25 you have done whatever you're supposed to do under Croatian law. At the
1 same time, it may be that the Tribunal would require more - we still have
2 to consider that - or less, if it ever comes to transferring any such
3 material to the Tribunal. I'm not asking at this moment a very concrete
4 answer, but would the Republic of Croatia
5 all the material which is seized and further discuss with the Tribunal
6 whether any additional checking, any additional check, on the possibility
7 of a violation of legal privilege would take place? For example, it's --
8 it's a matter which has not been further explored, but I'm just trying to
9 understand, for example, to give a role to -- give a role to the panel
10 which deals with such -- well, at least -- who deals with matters in
11 relation to the functioning of the legal profession before this Tribunal.
12 I'm referring to -- I'm asking you, whether, for example, an involvement
13 of the advisory panel which consists of five members appointed by
14 national bar organisations, or four out of them being appointed by the
15 International Bar Association and the Union Internationale des Avocats,
16 whether -- would you be willing to consider a check on any violation of
18 I can imagine that you do not have immediately an answer, but is
19 that something to which you say no -- there's a no, this is not something
20 we could consider or -- and that would then, of course, first require
21 that that no further activity would then be undertaken in relation to
22 that material, that it should be sealed, as the one computer is already
23 sealed, and then to wait for a while and to see whether a procedure could
24 be worked out which would satisfy not only Croatian law but also -- and I
25 must say, underdeveloped law in this respect in this Tribunal, because we
1 do not have much case law on this.
2 THE INTERPRETER: Microphone, please.
3 JUDGE ORIE: If you could say I would like to consider this
4 during the break, then the question has been put to you. We need to have
5 a break anyhow soon, and it may that you want to consult with whomever.
6 So but that question is -- is then there. If you would need
7 further information about the composition of the advisory panel -- and
8 I'm not saying that the advisory panel would consider this to be within
9 their responsibilities, but at least the thought has come up for any
10 procedural solution for the problem I just described.
11 And, of course, I'm also inviting the parties, and you could then
12 include any responses to such a question by the parties when considering
13 to answer my question.
14 Mr. Misetic, I have -- I have -- as a matter of fact, I've got
15 two questions for you. First of all, one question is for the
16 Prosecution; the other is for you, Mr. Misetic.
17 Would you agree, or would you consider if evidential material,
18 material which may have been material to the commission of an offence, is
19 kept by counsel or in his -- in the premises of his law firm, that that
20 would be inappropriate to keep it there, where it would be shielded
21 against search and seizure.
22 MR. MISETIC: Your Honour, I understand, but I think my position
23 is that that question depends on from what perspective you approach it.
24 I think it's fundamentally clear that lawyers generally cannot engage in
25 crime and that there should be procedures in place so that --
1 JUDGE ORIE: I'm not talking about lawyers being engaged in
3 Let me give a simple example. A client comes and -- has the
4 knife with which as was -- as he was suspected to have done, with which
5 he had killed his neighbour six weeks ago, comes and says, Could you
6 please keep this for me. It's evidence. We shouldn't lose it. Keep it
7 in your office.
8 Then, of course --
9 MR. MISETIC: You cannot -- you absolutely cannot keep that.
10 JUDGE ORIE: You cannot keep that.
11 MR. MISETIC: In my submission, and as far as I understand, the
12 ethical duties in my own jurisdiction, no you cannot, that circumstance,
13 keep the weapon and conceal it.
14 JUDGE ORIE: And that is because it is important evidence for --
15 MR. MISETIC: It is, in some respects, in our jurisdiction, you
16 could consider it obstruction of justice. It would be -- well, I would
17 argue under our rules here in the Tribunal, a potential Rule 77 contempt
18 proceedings, which is how I was going to -- why I said it depends on from
19 what perspective you approach this. I believe the Tribunal absolutely
20 has jurisdiction to deal with matters and cases that are in front of it.
21 There is a multiple layer of this which I had hoped and continued
22 to hope to be able to address with the Chamber today --
23 JUDGE ORIE: We're not ready yet today, Mr. Misetic.
24 MR. MISETIC: I know. But the question becomes, is this simply a
25 matter of Croatian law applying its laws to this problem or if, in fact,
1 it turns out that this is being done pursuant to an organ of this
2 Tribunal, particularly the Prosecution in this case, then I don't believe
3 the Trial Chamber can simply relegate it to how Croatian authority will
4 apply Croatian law because this Trial Chamber is seized with, under
5 Article 20, sub para 1 --
6 JUDGE ORIE: Yes.
7 MR. MISETIC: -- applying the rules to both parties in this case.
8 If there is a reason to believe - and I will state this on the
9 record - if the Prosecution in this case has information that would say,
10 That the knife is in possession of one of the Defence team, I don't think
11 there is any question that the Trial Chamber can issue an order saying,
12 Produce the knife. But there has to be some basis -- some evidentiary
13 basis for that. You can't just then say, I can't establish with the
14 Trial Chamber that the knife is with you, so I'm going to have the police
15 search through your office to see if the knife is there.
16 JUDGE ORIE: This is all based on highly disputed factual
17 background. We've heard that we can receive all the correspondence
18 between the Prosecutor's office and since -- at least that is certainly a
19 matter which we will not conclude to look at today. But you say whether
20 or not one of the parties in the proceedings has triggered or encouraged
21 to -- to seize that material without an order, and if that would be
22 Tribunal parties, that that's your view, that you couldn't then seek to
23 have that seized without -- without any order from the Chamber.
24 MR. MISETIC: Yes, but, Mr. President, I think we have here a
25 situation: Mr. Cule has indicated that they got a warrant from a judge
1 in Zagreb
2 information was used to obtain the warrant should have been produced to
3 Trial Chamber for the Trial Chamber then to authorise such a warrant or
4 such a procedure. If that is, in fact, the bottom line. Because if
5 evidence exists of that, I haven't seen it, and I have repeatedly -- even
6 on the record what the Trial Chamber said, we have done our own
7 investigations into this and have not found - and have no reason to
8 believe that we are in possession of - documents which are sought
9 pursuant to the RFA at issue here.
10 If there is evidence that would be sufficient for the Chamber to
11 authorise such a search, then I would submit this it should be brought to
12 the Chamber. The Chamber should review it and should issue an order.
13 JUDGE ORIE: You would say that apart from -- if the Chamber
14 orders that documents should be produced, or at least should investigated
15 whether they can be found, that, nevertheless, in every time, when -- for
16 achieving that purpose, it would be needed to search in order to be able
17 to seize, that this Chamber should issue always an order in that respect,
18 so that in --
19 MR. MISETIC: Absolutely --
20 JUDGE ORIE: -- the Chamber would be involved in the details of
21 the execution of an earlier order.
22 MR. MISETIC: Well, let me take it step by step.
23 We have a precedent in this case already. The Prosecution filed
24 a -- essentially a request to produce documents but in the form of a
25 motion seeking an order for us to produce categories of documents that
1 were there.
2 The Chamber's ultimate ruling - and I need to be careful here
3 because ...
4 JUDGE ORIE: You say it may be confidential.
5 MR. MISETIC: Yes, Mr. President, I'm not positive.
6 Can we move into private session. I believe it is confidential.
7 JUDGE ORIE: We can move into private session, but we have to
8 stop because the tapes are running out very quickly at this moment.
9 What I would like after the break to, first of all, to hear from
10 the representatives of the Republic of Croatia
11 checking of any seized material, whether that would be debatable. I'm
12 not in a debate but, at least, what their position would be, and would
13 like to -- of course, the Prosecution also, to think about this
14 possibility, because this -- the problem we have in front of us consists
15 of many, many aspects, and this is one of them on which I would like to
16 focus at this moment.
17 We have to have a break, because, otherwise, our words will be
18 lost forever.
19 Yes, but --
20 MR. CULE: [Interpretation] If I could just say something that
21 would not be in the record, as the Defence attorney said that the
22 Republic of Croatia
23 office --
24 JUDGE ORIE: You may say it after the break, but in 15 seconds
25 the tape will be expiring.
1 And, therefore, we adjourn, and we resume at 4.30.
2 --- Recess taken at 3.56 p.m.
3 --- On resuming at 4.44 p.m.
4 JUDGE ORIE: We have a bit of a late start. We were informed
5 that you had a consultation with your government.
6 Before we continue, I'd first like to put on the record that,
7 something with the external line feed is not properly functioning. So
8 even if it is difficult to have access to these proceedings at this very
9 moment, reason unknown, there are no conspiracies. The video of this
10 hearing will be made available anyhow. Of course, to the extent it's
11 public, and it was entirely public until now.
12 So, therefore, just to put this on the record, that it may be
13 difficult to follow these proceedings at this very moment, but everybody
14 will be made available.
15 One small question to start with. Mr. Mikulicic, did you
16 identify any person on the list?
17 MR. MIKULICIC: No, Your Honour, not on that list that was
18 provided to me.
19 JUDGE ORIE: Yes. That's, then, on the record as well.
20 Yes, I would to now invite the parties to -- in this case, the
21 Prosecution, to briefly respond to what is the core of what we're dealing
22 with this afternoon. That is, a -- a kind of freezing order, to say so.
23 If there's any problem with that. Freezing would mean? Freezing
24 to further inspect the assets under the -- the seized matters; that would
25 be documents, hard disks, computers, whatever is seized at this moment,
1 until we have further considered the various aspects of the present
2 situation, and we are focussing, at this moment, primarily on
3 client/counsel privilege, as being the first at stake. Of course,
4 there's the confidentiality of other material which may be about
5 protective witnesses. That is what we're focussing on at this moment.
6 And we'd like to hear from the Prosecution whether what their position is
7 in relation to such a motion.
8 Mr. Misetic, is there any need to further explain? It may be
9 clear that freezing just means keeping your options open and see what the
10 next steps would be.
11 MR. MISETIC: Yes, Mr. President.
12 I rose only because I don't know which would be more efficient.
13 I obviously have -- I would say a 20 to 30 minute response -- a reply
14 both to the Prosecution and the Croatian position, because there are
15 substantial portions with which we disagree and think will put things in
16 the proper context.
17 But, obviously, if there's a specific narrow question that you're
18 asking the Prosecution, that's fine. But, especially in light of how the
19 first session went, I think there is -- are broader issues that need to
20 be raised with the Chamber.
21 JUDGE ORIE: Yes. Now, the Prosecution has responded in writing
22 to the first written motion. What I'm seeking at this moment is
23 specifically the position of the Prosecution, which is not primarily
24 about who triggered what because that is -- that is dealt with, whether
25 satisfactorily or not is a different matter. The parties may have
1 different views on that, but that's dealt with in the filing we received
2 this morning.
3 At this moment, I'm primarily now seeking the position of the
4 Prosecution to -- for this moment to issue an order, and that's what was
5 asked, whether we'll do it or not, Mr. Ambassador, is still to be
6 considered by this Chamber, but what the Prosecution's position would be,
7 that at this moment, the -- this material, that is documentary material
8 and other material, would not be further inspected until further order,
9 and then we would, of course, look rather quickly to all the remaining
10 elements of which we have dealt with only in a very limited way until
12 And just to say there, of course, there may be several aspects in
13 this as well. That is, is it within our competence, within our
14 jurisdiction, if you have any views on that, why it would be or would not
15 be, of course, the Chamber would like to hear, and, of course, the
16 substance of the order itself.
17 MR. TIEGER: Well, Your Honour, I thank you. I'm going to begin
18 with the narrowest possible response, and we'll take it from there, I
20 And that is, from the Prosecution's point of view in -- in terms
21 of the instant -- the matter before the Trial Chamber, undertaking what I
22 understand to the court's suggestion from that point of view, that is, do
23 we have an objection to stopping for a brief time, not receiving any -- I
24 mean, from our point of view it would be not receiving any materials. It
25 wouldn't be anything affirmative or anything, so from the Prosecution's
1 point of view if we have an objection to not receiving any materials
2 resulting from the search from Croatia
3 have been given an opportunity to address this issue fairly, no, we don't
4 have an objection to that.
5 In fact, that's contrary. We would not want the court to proceed
6 precipitously in -- in any direction on a significant matter to affect
7 the rights of either party or the institution generally. Or Croatia
8 that matter.
9 JUDGE ORIE: And you think it would be within the competence,
10 within the jurisdiction of this Chamber to issue such an order?
11 MR. TIEGER: You know -- [Overlapping speakers] ...
12 JUDGE ORIE: [Overlapping speakers] ...
13 MR. TIEGER: I know, exactly.
14 I think as a general matter, Your Honour, from the limited
15 opportunity that I've had to review the jurisprudence, I -- I don't see
16 the -- see it -- necessarily see the Tribunal's competence to make orders
17 with respect to a domestic criminal investigation. I don't think the
18 Tribunal could order someone, for example, order the Croatian
19 authorities, to investigate a specific person, indict a specific person,
20 prosecute a specific person and soon on. Now, that's the preliminary and
21 I know that's the spirit in which the Court has made the suggestion.
22 JUDGE ORIE: Yes.
23 MR. TIEGER: But I also say I'm not sure that, and before we go
24 down that road and start debating those competences in more limited
25 context, or indeed in broader context, it appears to me that that may not
1 be at issue here. I mean, for one thing, if the Prosecution doesn't --
2 is -- is agreeable to not acceptable material for the limited period
3 we've discussed until the matter has been thrashed out, I'm a little hard
4 pressed to see -- I mean, now, you've still got the question of other
5 forms of dissemination of the material presumably, but I'm not aware yet
6 that the Court has explored with the Croatian authorities the possibility
7 of arriving that solution, at that temporary abeyance, absent the
8 necessity of a formal order and an examination of the competence to do
10 JUDGE ORIE: Yes, thank you for that answer.
11 You're clear on that you do not oppose against not receiving
12 material for a while. You're clear on that. Then, in respect of the
13 competence of this Chamber to issue orders, that's --
14 MR. TIEGER: Yeah. We simply haven't done sufficient level of
15 research. The preliminary indication is as I indicated, but it would be
16 remiss of me to suggest that I a definitive answer to that.
17 JUDGE ORIE: Thank you for that. We are all trying to form our
18 opinions on rather complex matters in a very quick way, and I think
19 everyone is struggling with that.
20 Mr. Misetic, could we hear about your struggle.
21 MR. MISETIC: Mr. President, I believe that -- that the Chamber's
22 jurisdiction to issue such orders is clear under the case law and under
23 the Statute. And I -- by way of an example explain why.
24 If we take the situation that there is a witness who testified
25 here, let's say, we are aware that the Croatian authorities are
1 conducting investigations into, let's take, for an example, Varivode, if
2 a witness has come here and testified with full protective measures about
3 Varivode, could a Croatian investigative judge compel Mr. Ivanovic to
4 disclose the name or papers so that that investigation in Croatia could
5 proceed with more information as to the identity of the witness that
6 testified, who may have testified with pseudonym and face distortion but
7 in public and the judge thought there was valuable testimony that could
8 be gained by this. I think the answer would be quite clearly no.
9 The Trial Chamber's orders for protection take precedent. We, as
10 the Defence, would have an obligation to the Chamber, first and foremost,
11 and couldn't simply say there is a parallel investigation going, and we
12 also have an obligation to, essentially, violate an order of the Chamber.
13 I don't see any material distinction between an order of the
14 Chamber and a rule or the Statute. In other words, if something is
15 precluded by, for example, the code of professional conduct at the ICTY,
16 that may be lawful, for example, disclosing a client confidence, because
17 an investigative judge in Croatia
18 be disciplined at the ICTY because we're bounds by the code of
19 professional conduct here.
20 So I believe that the Tribunal in keeping matters directly
21 related to it has the jurisdiction and authority to enforce its own
22 orders, and similarly must have, by implication, the jurisdiction to
23 enforce both the rules and rules which flow from Article 21 of the
24 Statute. I think the Appeals Chamber's jurisprudence has been clear that
25 the attorney/client and work product privileges flow from the accused's
1 right under Article 21 against self-incrimination. If the Chamber did
2 not have jurisdiction to enforce those rights and rules, then obviously
3 they're not worth very much, and I think that implicit in the
4 jurisprudence and in the jurisdiction of the Chamber is obviously the
5 power to enforce its own orders, rules, and the rights of the accused.
6 So to that extent we would say that if the Chamber were to find
7 that both attorney/client work product matters could be disclosed as well
8 as matters which are currently governed by orderings of the Chamber, and
9 by way of example, the documents seized in Mr. Ivanovic's car are
10 documents disclosed by OTP to us and which are still under an order of
11 the 14th of July 2006, we would say that obviously the Chamber must have
12 the authority to enforce the 14 July 2006 order as well as the rights
13 guaranteed under the Statute.
14 In terms of -- I appreciate Mr. Tieger's position with respect to
15 information being received by the Prosecution but that still leaves us in
16 the position that persons in Croatia
17 drives, et cetera, and continue with further investigative steps. For
18 example, I will disagree with Mr. Cule that one office that isn't related
19 to the Gotovina Defence was searched. That office is related. I have
20 been there personally myself. There is obviously nothing to preclude the
21 Croatian authorities from conducting a search of the second office.
22 So while none of that information ultimately will go to the
23 Prosecution under the position taken by the Prosecution, that still
24 doesn't prevent the injury, because the question is not only is the
25 attorney/client privilege protect from disclosure to the Prosecution, it
1 protects from the disclosure to essentially to anyone and it should be.
2 Thank you.
3 JUDGE ORIE: Mr. Tieger.
4 MR. TIEGER: Well, then, now I have some more thoughts as a
5 result of this responsive dialogue, Your Honour, and I hope -- and again
6 the Court needs to let us know when -- and there's a certain level of
7 brain-storming and spontaneity of this happening. If you've heard
8 enough, let me know. I'm not trying to intrude unnecessarily.
9 JUDGE ORIE: No. If you say that -- you're telling us that you
10 have developed some thoughts, the Chamber is always interested in hearing
11 any thoughts.
12 MR. TIEGER: No, I -- again, the first thing I was going to say,
13 first of all, we know that the Court has already indicated it should only
14 intrude in exceptional circumstances. That's fairly consonant with the
15 general rule of least restrictive measures, least intrusive measures. I
16 don't think that's really at issue.
17 Mr. Misetic is -- seems to be suggesting that where the
18 possibility exists that some violation of confidentiality may occur, the
19 Court should take the measure that it would take in the face of
20 information that it was about to occur or had been occurring.
21 That does not strike me as the least intrusive measure.
22 Secondly, the last example provided by Mr. Misetic seems to focus
23 not on the -- on the -- a general issue of confidentiality not related to
24 materials before this Court but seemingly related to Croatia's
25 investigation to obtain its own documents.
1 Now, first of all, I don't think this Court has a particular --
2 has particular standing or interest to supervise the practices of
3 judicial systems generally for their own purposes. So where this matter
4 strays into areas of investigation that are being pursued by Croatia
5 under its own domestic jurisprudence by Croatian officials under Croatian
6 law to seek Croatian documents, that's a separate matter. The question
7 is at what point does the court's interest in the -- the privilege take
8 hold. And I think it's also important just to note in connection with
9 the issue of least intrusive measures that the Court has indeed been
10 focussing on concerns that it would -- that confidentiality would be
11 breached and the Court would receive information that was a fruit of that
12 effort. It seems to me the first step in determining whether there is a
13 systematic risk of that occurrence is to -- would to be review or
14 consider the standards of the jurisdiction in which the investigation is
15 or has taken place. From what we've heard today, those standards seem
16 extraordinarily high. Took a quick glance at Article 17, subsection 5,
17 that focuses, for example, on the fact that the investigative materials
18 that are seized, and I don't have it -- let me just read that out.
19 "The search of an attorney or law office limited to the
20 examination of only those documents and objects that are --"
21 THE INTERPRETER: Mr. Tieger would you kindly --
22 MR. TIEGER: Sorry. "The search of an attorney or law office
23 certainly or a law office shall be limited to the examination of only
24 those documents and objects that are directly connected with the criminal
25 act that is the ground for the proceedings."
1 Now, in that connection, Your Honour, I think it is important to
2 note the nature of the material that is at issue here vis-a-vis the
3 Tribunal. We are -- the confidential information and the best examples
4 of confidential information that we have focused on in the hearing have
5 been, for instance, e-mails. I think it's -- it's -- that's an issue
6 that's addressed by this provision that's dramatically and obviously
7 distinctive matter from the kinds of materials that are the focus of this
8 case. So the -- when there's no evidence of either a systematic -- as a
9 weakness, or an absence of attention to the issue of attorney/client
10 confidentiality, and, furthermore the nature of the material involved
11 does not appear to give rise to a dramatic prospect of confusion, then I
12 would suggest that the need for dramatic measures is seriously decreased.
13 So I wanted to bring those matters to the court's attention. I
14 also wanted to mention, if I may, the fact that there are many options
15 available. I know the Court is trying to solicit from the parties any
16 number of them, but I felt we have to begin with the option that exists
17 in the Tribunal now, which is essential Rule 95, which has at a minimum
18 the strength of becoming operative at a moment when matters become ripe
19 and not before. For example, no documents may turn up that are relevant
20 to the inquiry of -- that this Chamber has made, and no documents may be
21 submitted to the Prosecution or the Chamber, in which event the
22 consideration of some -- imposing some systematic mechanism for
23 addressing that in advance would seem both premature and unnecessary.
24 Now that -- I'm not suggesting that Rule 95 may address all of
25 the court's concerns, but in trying to resolve this issue, I think we
1 have to begin with all of the possibilities and consider both why they
2 exist, what advantages they have, what problems they may not resolve.
3 JUDGE ORIE: Mr. Tieger, would you agree with me that we are
4 still in the process -- not we, but that the process of obtaining the
5 evidence has not been finished I didn't tell. I mean, we see that some
6 materials are still under seal. I take it that even where it -- leave
7 was granted to inspect hard disks that it may take a while before you
8 looked at all of it.
9 So if you say it's premature, would you disagree with me that it
10 may be wise, already at the time of obtaining the information, to take
11 proper care that nothing goes wrong or goes any further wrong which would
12 finally result in the application of Rule 95.
13 MR. TIEGER: I think understand the Court's concern. And that is
14 if you can avoid either a Rule 95 issue and particularly avoid the
15 possibility that the Court may not receive evidence it could receive,
16 because of the provisions of Rule 95 it would be a great idea to avoid.
17 And so that's why I didn't stand firmly on Rule 95.
18 JUDGE ORIE: No. But you --
19 MR. TIEGER: One thing I do. Sorry to interrupt.
20 JUDGE ORIE: No.
21 MR. TIEGER: I know the Court suggested a measure. Again, I take
22 that in the spirit of this proceeding, the effort to identify potential
23 solutions and find a way through this. But what occurred to me in
24 connection with the one suggestion that the Court made is that with
25 respect to any solution that undertakes to deal with the material before
1 it's received or while the investigation is proceeding, I think the Court
2 has to be -- has to take care not to undercut the involvement of those --
3 of those bodies best placed or the ultimate responsibility of those
4 bodies best placed to make those decisions is the judicial authorities of
6 Chamber has to remain the ultimate decision-maker about the admissibility
7 of evidence vis-a-vis the Chamber and about the -- the -- about whether
8 or not documents that are tendered to it or, in this case, we're talking
9 about that may be tendered to it, have been acted accordingly.
10 So my reaction - and I offer this again, in the spirit it was
11 suggested - to the suggestion made by the Court is to focus on the need
12 for the Tribunal to remain in control and not -- not advocate in any way
13 to an intervening body.
14 I think the Court is searching for some prophylactic to minimise
15 the risk that a Rule 95 issue will arise. It's for that reason that
16 we've been prepared to accept the freeze in the nature the Court
17 suggested, but I don't know that we're in a position to identify the
18 precise mechanism at this moment.
19 MR. MISETIC: Mr. President.
20 JUDGE ORIE: Before I give you an opportunity, and you,
21 Mr. Kuzmanovic, to make further submissions.
22 I would like to emphasise that this Chamber is not trying to save
23 evidence so that it would not have to exclude it under Rule 95. One of
24 the primary concerns of the Chamber, of course, is a violation of what is
25 an important matter, that is, client/counsel privilege. Therefore, that
1 may have an effect, of course, violations of important principles may
2 lead to all kind of consequences, as is set out almost in all the cases,
3 the European Court of Human Rights dealt with in this respect. They
4 always say, apart from the importance of sometimes not interfering with
5 private lives, sometimes not interfering -- and not -- but also in the
6 context of Article 6 of the European Convention on Human Rights that it
7 has the two aspects: The first is observing the confidentiality and the
8 second is the possible consequences in criminal proceedings.
9 I just wanted to emphasise that certainly the first aspect is not
10 any less on the mind of the Chamber than the possible consequences.
11 MR. TIEGER: I fully understand, Your Honour, and I want to
12 emphasise we share that as well, and I hope my remarks didn't suggest
13 otherwise. I agree that provisions of the Rule 95 are not just for the
14 purpose of preserving evidence, but to ensure as much as possible that
15 the underlying violations don't occur.
16 JUDGE ORIE: Mr. Misetic.
17 Mr. Kuzmanovic, you were on your feet as well, if that was just
18 for a short submission.
19 MR. KUZMANOVIC: It's very short, Your Honour.
20 JUDGE ORIE: Yes.
21 MR. KUZMANOVIC: Thank you.
22 I think we really need to get back to what the practical issue is
23 here. The practical issue is attorney materials were seized from an
24 attorney in his office that are connected with the Defence in this case.
25 They were seized by the Croatian government. They would not and I
1 think -- I think it's disingenuous to say that this is not being done as
2 a result of the search for the so-called artillery diaries by the
3 Croatian government, because if that wasn't the case, we wouldn't be
4 here. The sole reason for these searches and these investigations are
5 claims to be that Croatia
6 Well, the reality is, is it wouldn't be conducting this, had it
7 not been at the cooperation and suggestion and working essentially hand
8 in glove with the Office of the Prosecution to try to find where these
9 documents supposedly are.
10 So I think it's very telling that the fruits of the search
11 potentially, whatever those might be, from seizing computers and invading
12 an attorney's office, would be potentially turned over to the Prosecutor
13 are very grave. And that's really the issue. Are the fruits of these
14 searches, first of all, searchable and seizable, and second of all are
15 they able to be turned over to the Prosecutor? And my question to those
16 two questions is know.
17 And when the Prosecutor tells us that, Well, we don't object to
18 obtaining any documents which potentially would -- I'm assuming would be
19 the result of these searches and seizures, that's very troubling to me.
20 I'm glad that they don't want to obtain those documents, but the fact
21 that they are seeking them potentially those documents is very troubling
22 because those documents potentially are privileged, and I -- that's --
23 that's what I wanted to say. It is not simply the Croatian government
24 conducting a search for these documents simply because they're -- they
25 belong to the Croatian government. None of this, I can guarantee, you
1 none of this would be going on had there not been an RFA or consistent
2 pressure applied on the Croatian government by the Office of the
3 Prosecutor to produce these documents. None of this would be occurring.
4 That's my point. It's a very common sense approach. The Court
5 can freeze, and I believe should freeze, any fruits of this search from
6 going outside to any other party, including the Croatian government, and
7 including any -- certainly the Office of the Prosecutor. Those are
8 privileged documents. What is contained in those documents, we don't
9 know, and I think that's very troubling that you know --
10 JUDGE ORIE: Mr. Kuzmanovic, you earlier said they are to
11 potentially privileged. Now, you say they are privileged. I earlier
12 raised with Mr. Misetic the issue as to what is covered by the privilege,
13 whether that would cover also evidence, evidential material, which is --
14 is still sought. We had the discussion about the knife. I wouldn't say
15 that artillery documents are knives, but at least you -- your statements
16 are, first of all, they're changing quite quickly from potential --
17 potentially privileged to privileged. And the second issue, which have
18 you not addressed, is the matter which I raised with Mr. Misetic, as to
19 whether evidence which is sought and perhaps cannot be attained
20 elsewhere, whether that should be protected from search and seizure by
21 being in a law firm.
22 That -- I'm not saying that I -- the one or the other is true,
23 but I'm just saying that these detail, at least, were not -- were not
24 dealt with in your brief submission.
25 MR. KUZMANOVIC: I appreciate that Your Honour and I think the --
1 have you to go under the presumption that it is privileged because we
2 don't know what's in that. I think the presumption has to be that the
3 documents are privileged because --
4 JUDGE ORIE: Isn't it true that there is the whole of the
5 problem? If not in this case, but in general. How to identify
6 whether -- and that's the case law of the European Court of Human Rights,
7 again and again emphasises that on the one hand a respect for privilege
8 would be a reason to be abstain from any searches and seizures; on the
9 other hand, that there may be a legitimate interest in trying to obtain
10 evidence which may be found in the premises of law firms. And then, of
11 course, you wouldn't do that easily, and then who is going to find out
12 whether it is or it is not? Who is abusing? Is it the Prosecution who
13 is abusing its powers for search and seizure, or is it the Defence, and I
14 put the question as neutral as possible. Or is it the Defence who has in
15 its law firms evidence which should not be in that law firm.
16 I'm not expressing any opinion on what it is, but I'm just trying
17 to -- to clearly give a picture of what the problem is, and then this is
18 further complicated here because we are dealing with two jurisdictions,
19 the one acting on its own and at the same time in a position that it has
20 an obligation to assist the other jurisdiction. Then, apart from that
21 further allegations, that inappropriate behaviour is involved as well.
22 It is a very complex, and the only thing I wanted to say at this moment
23 is that at least some of the very obvious complicating aspects had not
24 been dealt with. Not to say that I'm inviting to you start all over
25 again, but just to let you know, that these are matters which the Chamber
1 certainly will have to look at as well.
2 MR. KUZMANOVIC: I completely understand that, Your Honour. I
3 don't think we still heard today what the factual basis was for the
4 underlying search of Mr. Ivanovic's vehicle, computers, and office. We
5 haven't heard what fact had been put forth for that. And I think that's,
6 you know, what are those facts? We still don't know what they are.
7 MR. MISETIC: Mr. President.
8 JUDGE ORIE: Yes, there are certain facts not known to us, and
9 we'll, first of all, have to consider what exactly the relevance is for
10 decisions to be taken and then how to establish such facts, if there is
11 any need to do so.
12 Mr. Misetic, I kept you waiting for quite a while. Now it's your
14 MR. MISETIC: I'm going to try to respond to everybody in a
15 omnibus fashion.
16 But, first, I would state that I don't belive the injury is a
17 potential injury in the sense that we are now speculating about whether
18 there might be an injury, but the mere seizure and the search in and of
19 itself has triggered the injury, given that, I would submit to you, if
20 the hard drive is searched or since we don't know what's going to happen
21 to the computers and since they're outside of our possession and control
22 at this point, that some remedy needs to issue.
23 Secondly, Your Honour, I would again plead with the Chamber to
24 allow me to address what I think the underlying factual issues are here.
25 We've discussed a lot of the legal issues, but I think to get to the
1 legal, we need to understand first what are the facts, and I would
2 appreciate it if I could take us through that. Because, ultimately, the
3 facts are what I would argue in rebuttal to Mr. Tieger about this being
4 something of a domestic issue and the Chamber shouldn't be involved in
5 supervising the domestic Courts. We do not accept that this is a
6 domestic issue. This is an ICTY issue, started in the ICTY, triggered by
7 the Office of the Prosecutor, and instigated by the Office of the
8 Prosecutor, at least as to the pure facts that we have, and we believe we
9 with prima facie show that. Now --
10 JUDGE ORIE: One second, please.
11 [Trial Chamber confers]
12 JUDGE ORIE: I get a message that the server crashed. Which
13 means no LiveNote, no ... well, I see at least something moving on ...
14 [Trial Chamber and registrar confer]
15 JUDGE ORIE: Everything will be recorded by our access to our own
16 LiveNote and Lotus Notes; that is, that we cannot make in e-court any
17 notes or whatever, so our personal accounts connected to e-court are not
18 functioning at this moment. But we can proceed under those
19 circumstances, because the mainstream is still functioning.
20 MR. MISETIC: Yes, and in light of the fact that nothing is
21 working, Mr. President, I propose that I entertain us for about half an
22 hour with a ...
23 JUDGE ORIE: Yes, and we have considered that. I consulted my
24 colleagues on the matter.
25 [Trial Chamber and registrar confer]
1 JUDGE ORIE: The Registrar informed me that the records will be
2 available completely despite all the problems we have, and this is again
3 ensured by our transcriber, who provides us with the transcript. Video
4 and audio will also be available at the very end.
5 Under those circumstances, the Chamber prefers to proceed and not
6 for the mere fact that we cannot use the system as we usually do,
7 Mr. Misetic, the Chamber highly appreciates your entertaining capacities,
8 but has decided that you may briefly address these matters. But since
9 there is a lot of factual dispute about this, the Chamber does not want
10 to end up in a situation where these facts, without having even a
11 possibility to hear any further evidence on that matter, if we would want
12 to hear that evidence. So, therefore, you can briefly address these
13 matters. You can point to some key factual elements you consider to be
14 established even where it's disputed, but we want to avoid that we have a
15 lengthy debate on what happened and what did not happen exactly in the
16 communications between the Republic of Croatia
18 MR. MISETIC: Thank you, Mr. President.
19 JUDGE ORIE: I'm not keeping you totally out of the field, but I
20 hope you understood.
21 MR. MISETIC: I will advise my colleagues on the Prosecution's
22 side that I believe for purposes of this hearing that the issue is not
23 whether in fact it's confirmed what we say is true nor does the Chamber
24 have to reach that conclusion in order to provide temporary relief. I
25 don't think that's the standard and, therefore, obviously the Chamber
1 does not have to ultimately accept this as true because there can be
2 further hearing and argument on this point.
3 But the point has been raised by the Prosecution in its response
4 that we have not established a factual basis both for the relief and the
5 second issue, which we haven't touched on today, which is whether
6 Mr. Brammertz should personally be present on Wednesday, and I will try
7 to wrap that all up into this submission.
8 JUDGE ORIE: Briefly, as I said.
9 MR. MISETIC: I will try, Mr. President.
10 I would first -- if we can move into private session because I'm
11 going use some confidential documents.
12 JUDGE ORIE: We move into private session.
13 [Private session]
11 Pages 26136-26147 redacted. Private session.
14 [Open session]
15 THE REGISTRAR: We're back in open session, Your Honours.
16 JUDGE ORIE: Thank you, Mr. Registrar.
17 Mr. Ambassador, Mr. Cule, you have heard a lot. I would invite
18 you to make submissions on two matters.
19 The first matter would be your position in relation to the
20 sought-- the order sought by the Gotovina Defence, which I will refer to
21 as the freezing order, that is to be understood that you would
22 discontinue further inspection of the seized material. That is not
23 further look at the document, not further look at what is on the hard
24 disks, et cetera. So just make a pause in that respect. That is one.
25 If you would be include into that, whether without an order you
1 would be willing, on a temporary basis, to do the same, we would like to
2 hear that from you.
3 And the second issue, I would like you to perhaps briefly address
4 what your position would be in trying to seek procedures which would
5 allow for a detailed review of whether there is, in the material which
6 was seized, whether there's any material in that, which would be covered
7 by client/counsel privilege, by professional privilege, and if you would
8 agree in trying to seek such procedures. We have no time and no
9 possibility at this moment to work them out. I take it that -- that we
10 would then start with that. If you would be inclined to do so, we would
11 start exploring that and seeing whether any agreement can be reached on
12 Monday but that, of course, would suggest that, meanwhile that you would
13 wait for -- for the results or at least until a further moment and not
14 just continue to inspect all that material because then, of course, such
15 agreement on verifying whether there is any privileged material in there
16 would not be make that such sense.
17 Mr. Cule, will it be you, or will it be you, Mr. Ambassador, to
18 deal with these matters.
19 MR. CULE: [Interpretation] Thank you, Your Honour. I will be
20 glad to begin answering the question, and the Ambassador, I suppose, will
22 I will briefly answer to the questions you asked me and please
23 allow plea to answer some of the things that occurred in what Mr. Misetic
24 and Mr. Kuzmanovic mentioned because I did not have an occasion to answer
25 to these remarks, and I think it's important to respond to that.
1 JUDGE ORIE: When I give you an opportunity to respond to the
2 order sought by the Gotovina Defence, that, of course, would include that
3 you further comment on what has been submitted in relation to that issue.
4 So feel free to do that.
5 MR. CULE: [Interpretation] Thank you.
6 To simplify matters maybe everything will be simpler after what I
8 In the Republic of Croatia
9 Mr. Misetic said the order of the OTP but the order of the Trial Chamber
10 of the 16th of September 2008
11 after the documents were seized, the documents that we are discussing
12 today, I was informed during the break that preliminary processing or let
13 me say analysis of this document has already been carried out.
14 Among the documents that have been analysed, there are no
15 documents which have been sought pursuant to this request. What has not
16 been reviewed, not even preliminarily at this point, is the laptop owned
17 by Mr. Marin Ivanovic. I said by way of introduction that it's not
18 possible to do that because there is no request to issue such an order
19 and there is no judge's order to that effect. According to the
20 information that I have, this will not decided before Monday, because
21 it's already Friday afternoon at the moment, and, as rule, this is not
22 done over the weekends.
23 Therefore, a part of this issue is, in my opinion, already
24 superfluous. But that's only my view. I oppose a freezing order,
25 freezing order under inverted commas. I believe that when you mentioned
1 the example with the knife that it would be clear what you had in mind.
2 However, Mr. Misetic and Mr. Kuzmanovic did not accept in the way that I
3 expected them to do. Therefore, I wish to emphasise that the proceedings
4 against any person in the Republic of Croatia
5 crime of concealing or destroying archival materials. And this is a
6 crime which is prosecuted ex officio whenever there are grounds to
7 suspect that such persons may have committed those crimes so that there
8 wouldn't be any doubts, this is no new or recent crime. This is
9 something that is very old. At this moment we already have three
10 judgements against persons who were found to have possessed such
11 materials, and one of these judgements has become final. I'm saying this
12 because the Court has given its opinion on the OTP's initiative, in terms
13 of whether this is to be considered a crime or not.
14 I especially wish to emphasise, considering that Mr. Kuzmanovic
15 says that the Croatian government - I'm not sure whether he said ordered
16 or carried out the searches that took place these days - that this is
17 completely incorrect, because the Croatian government could not have done
18 it, nor did it do that. Likewise, when Mr. Misetic says that the
19 Croatian authorities are acting at the instigation or because they were
20 ordered to do so by the Chief Prosecutor of ICTY, I wish to say that, in
21 the sense that the State Prosecutor's Office is part of the authorities
22 in the Republic of Croatia
23 State Prosecutor's Office never and -- did anything at the order or at
24 the instigation and did not initiate any proceedings against any person.
25 All this criticism which was voiced in the last few days were
1 officially refuted on the web site of the State Prosecutor's Office of
2 the Republic of Croatia
3 measures to be taken and how work connected to this case could continue,
4 as the Deputy Chief Prosecutor I cannot say anything about that because
5 this is beyond my jurisdiction, and the Ambassador of the Republic of
7 Thank you.
8 MR. PARO: Your Honour, just briefly. I have consulted my
9 government, and while at -- while at this moment, they believed that
10 there are not -- no sufficient elements to be conclusive on the proposal,
11 and you have heard that they -- the position is that we are not in favour
12 of the freezing, we are concerned also, if I may just say, we are acting
13 under the sense of very high urgency because of the fact that the whole
14 matter of the documentation has been taken to the political fora and
15 consequently we are subject -- Croatia
16 sanctions so -- and our substantial interests are harmed. We are not
17 very much inclined to any kind of lengthy procedures that would involve
18 us and the Court.
19 So we would like to move forward as quickly as possible, having
20 regard of the substantial harm to our interests.
21 As for the team that would appear before the Chamber on the 16th,
22 I have been instructed that the Prosecutor will not appear, unless
23 Prosecutor Brammertz would also appear. And I have the list of the
24 people and as we speak, I believe that that has been passed onto the
25 Court through the official channel.
1 Thank you.
2 JUDGE ORIE: Yes. Do I understand you well. I made a suggestion
3 earlier, whether Croatia
4 verification of any privileged material being involved in the search and
5 the seizure. You answered that you would -- do not wish to engage in any
6 lengthy proceedings. Well, you may have understood from the way in which
7 this Chamber acts that we are trying to move forward always as quickly as
8 possible. I mean, the whole matter was brought to our attention
9 yesterday, and one day after that, we have a hearing on the matter.
10 Is this to say that -- even to explore that possibility, well,
11 let's to say, to start with to spend Monday and/or Tuesday on that, to
12 see whether any further verification could be achieved, would you not be
13 willing to make this step at this moment and see whether something can be
14 achieved, which, as I said before, is of quite some concern to the
15 Chamber. That is, that both material which may contain matters which are
16 covered by orders of this Chamber, and material which could be privileged
17 material, that that is further inspected without any further control,
18 although the Tribunal interests seem to be directly involved. We're
19 talking about the functioning of the Defence.
20 Is it your position that you would not even want to explore such
21 a possibility and, meanwhile, suspend further inspection of that
22 material, well, let's to say, to start with, let's forget about the
23 weekend because I take it that not much activity will be developed on the
24 weekend but that, for example, Monday and Tuesday, that further
25 conversations between the Registry because the Registry would be the
1 authority which would work with you on such a solution, that you would
2 have conversations with the Registry, the first days. Is that your
3 position, that --
4 MR. PARO: [Overlapping speakers] ... If you consider to give me
5 another opportunity to consult my government, I'm glad to do that.
6 JUDGE ORIE: Yes. I'm therefore seeking a kind of -- I think you
7 a call it a moratorium, in which the possibility of at least - I'm not
8 talking about any other aspect of the case at this moment - but at least
9 the review of whether there's any material which would be covered by
10 privilege which is not anymore in the hands of the Defence but is now in
11 the hands of the Croatian authorities.
12 One of the matters that would be included, for example, to delay
13 a request for having access to the seized computer, that would be one of
14 the things the Chamber would expect as part of that freeze. And I'm, at
15 this moment for a first exploring exercise, I'm thinking in terms of --
16 and perhaps we could deal with the matter -- any further on Wednesday,
17 that at least Monday and Tuesday are used to see whether any solution, in
18 relation to this aspect of the matter could be reached.
19 If you would say you would like to consult, we'll give you an
20 opportunity to do so, of course, and we would then have a break.
21 Mr. Misetic.
22 MR. MISETIC: May I also offer us another suggested alternative
23 which I think is how we would approach this.
24 Would the Republic of Croatia
25 Chamber whatever evidence this it was that led to the search in the first
1 place? And the reason I say that is we have -- Mr. Tieger said he
2 doesn't know what evidence was used for the search warrant, which I trust
3 means that he doesn't know what was submitted to support the search
4 warrant. But I note that on 9th November the task force submitted its
5 report with evidence, and on the 19th, ten days later -- but let me just
6 say procedurally, this takes us back to the Trial Chamber's prior
7 jurisprudence which is why I'm trying to stay consistent with how this
8 problem was has been dealt with in the past.
9 If there is something that they are looking for, then there
10 should be a submission through OTP to deliver it to the Chamber. But
11 right now --
12 JUDGE ORIE: That's your position, that's clear. Now, another
13 matter is the first step to be taken there, would be, Mr. Misetic, that
14 you ask the Croatian government whether they would be willing to provide
15 it so that can you submit it to the Chamber. That -- isn't it. The
16 Chamber at this moment is at the early stages of analysing the problem
17 but --
18 MR. MISETIC: Mr. President, if I may just -- here's the concern
19 [Overlapping speakers] ...
20 JUDGE ORIE: [Overlapping speakers]... Yes, but --
21 MR. MISETIC: I don't wish to be bound by Croatian interpretation
22 or how they view what [Overlapping speakers] ...
23 JUDGE ORIE: I see that, Mr. Misetic, but you're introducing
24 now -- it's not the same kind of solution that the chamber is seeking for
25 that specific problem. You're seeking the cooperation of the Republic of
2 the first questions by this Bench to the Republic of Croatia
3 happened, what is it. At the same time, this Chamber will not lightly
4 manoeuvre itself in a position where it becomes a supervisor of Croatian
5 courts because that's not its primary task.
6 Therefore, at this moment, I take it that this matter has been
7 sufficiently dealt with.
8 Mr. Cule, you know what Mr. Misetic asks? Yes. You have the
10 MR. CULE: [Interpretation] There is an order on the search of the
11 home and other premises, as well as of the vehicle of Marin Ivanovic.
12 And Marin Ivanovic had received that. This is a judicial order
13 containing an explanation. The explanation contains reasons that the
14 court had used in order to order the search.
15 It also contains all the bases for the court to reach such a
17 JUDGE ORIE: First, do you -- have seen that order, Mr. Misetic?
18 MR. MISETIC: No. And, obviously, I'm not the party to be
19 moving, seeking documents from my own team. So it's kind of absurd on
20 its face.
21 JUDGE ORIE: No, no, I'm not talking about -- but you say, I
22 would like to know what the reasons were. Now, we get an answer saying
23 the reasons are laid down in a document are you not aware of, and
24 apparently it is offered to you to start with, to have a look at that.
25 MR. MISETIC: That wasn't the point I was trying to make
1 Mr. President.
2 The point I'm trying to make --
3 JUDGE ORIE: No. You are -- now at this moment -- I'm also
4 looking at the clock. It has been clear to the parties that not every
5 aspect could be dealt with today, that we were limited. We -- it's ten
6 minutes past 6.00 now, we have an offer by the Ambassador to -- to
7 further consult and see whether there's any room for, at least until
8 Wednesday, some further talks and to see whether without orders the
9 matters could -- at least this aspect could be dealt with.
10 MR. MISETIC: Yes, but Mr. President --
11 JUDGE ORIE: And I would like to give a an opportunity at this
12 moment to the Ambassador to -- to make that consultation.
13 MR. MISETIC: If I could just one sentence, Mr. President.
14 JUDGE ORIE: One sentence.
15 MR. MISETIC: I understand the Chamber does not want to be -- to
16 supervise Croatian courts, but I need to emphasise for the Chamber that
17 neither Mr. Kehoe nor I will be supervised by Croatian courts.
18 That's the point, thank you Mr. President.
19 Thank you.
20 JUDGE ORIE: Thank you.
21 How much time would you need, approximately?
22 MR. PARO: A second -- well, 15 minutes.
23 JUDGE ORIE: 15 minutes. We need a break anyhow. That means
24 that we will have a break of 20 minutes that's needed for tapes to be
1 We resume at 25 minutes to 7.00.
2 --- Recess taken at 6.12 p.m.
3 --- On resuming at 6.48 p.m.
4 JUDGE ORIE: Could I invite you, Mr. Ambassador, or you,
5 Mr. Cule, to inform us about the result of your further consultations.
6 MR. PARO: Your Honour, I did consult my government. To this
7 point, we believe that it is the sole responsibility of the Court to deal
8 with the evidence seized. There is no way that the Croatian government
9 could exert any kind of influence or pressure on the Judges to withhold
10 the procedure, but, however, we would certainly not object if the Chamber
11 may wish to communicate directly to the Croatian judiciary in order to
12 achieve the freezing of the procedures.
13 Well, that's as much as can I say.
14 JUDGE ORIE: Thank you.
15 Mr. Cule, or you, Mr. Ambassador, a very quick question, I take
16 it that the Croatian government can give orders to officers who are
17 investigating matters, police officers. I mean, they do not act upon
18 orders. Of course, they are bound by orders, but their investigative
19 activity is under the supervision and under the control of -- I take it,
20 the Ministry of Interior. I'm not going into any further detail. But
21 that, to that extent, to order them to remain inactive in a certain
22 field, that is within the competence of the government, would it not be?
23 MR. CULE: [Interpretation] Yes, the minister of the interior is
24 part of the government of the Republic of Croatia
25 the judiciary power.
1 JUDGE ORIE: Yes, thank you for that.
2 [Trial Chamber and legal officer confer]
3 JUDGE ORIE: Mr. Ambassador, you kindly offered to provide the
4 correspondence between the Office of the Prosecutor in The Hague and the
5 Croatian government on -- the Chamber would like to accept that offer,
6 not primarily for the Chamber to be informed, but primarily for the
7 parties who may have an interest in being acquainted with that material.
8 Then the Chamber will -- yes, Mr. Mikulicic. Oh.
9 [Defence counsel confer]
10 MR. MISETIC: Mr. President, might we also inquire if the
11 Republic of Croatia
12 parties any minutes that may have been taken at this meeting -- meetings
13 between Mr. Brammertz and the officials that we -- on the 28th of
14 September, 2009?
15 JUDGE ORIE: Mr. Ambassador, Mr. Cule, you heard the question.
16 Mr. Misetic would be interested to know whether the Croatian government
17 would provide, because he has a specific interest in it, any minutes of
18 meetings. Can you answer that question?
19 MR. PARO: I can only pass the question to the -- my government,
20 which I will do.
21 JUDGE ORIE: Yes.
22 Any further matter, at this moment, to be raised by the parties?
23 Mr. Kuzmanovic.
24 MR. KUZMANOVIC: Your Honour, as we know -- as you know our
25 client has issued specific instructions as to the presentation of
1 evidence we have Monday and Tuesday.
2 JUDGE ORIE: Yes, I'll come to adjournment in a moment. That,
3 therefore, is a -- we could keep that for a few minutes after now.
4 Because the Chamber will issue a temporary freezing order
5 directed to the Republic of Croatia
6 The Chamber would like to issue an interim decision on the
7 motions of the Gotovina Defence and the Markac Defence for temporary
8 freezing orders directed towards the Republic of Croatia
9 Considering the urgency of the matter, the Chamber hereby orders,
10 with reasons to follow, the Republic of Croatia
11 notice, all inspections of the contents of all seized documents and other
12 objects, including computers, that Croatia has in its custody, which were
13 seized and removed from the possession of the Gotovina Defence, or from
14 present or former members of the Gotovina Defence, provisionally
15 identified as Messrs. Ivanovic, Ribicic, and Hucic or their relatives.
16 Specifically, the Chamber orders Croatia to seal these seized
17 item, insofar it has not already done so, and keep them in its possession
18 until further notice.
19 The Chamber will issue in due course a reasoned, written decision
20 explaining its competence to issue this order and why it has found it
21 appropriate in the present circumstances to do so.
22 The Chamber further orders the representatives of Croatia present
23 in the courtroom today - and that is you, Mr. Ambassador, you, Mr. Cule -
24 to convey without delay this message to the competent Croatian
25 authorities. The Chamber emphasises that the interim decision has
1 immediate effect and remains in force until further notice.
2 And this concludes the Chamber's interim decision on the motions
3 of the Gotovina Defence and the Markac Defence for temporary freezing
4 orders directed towards the Republic of Croatia
5 Mr. Paro, Mr. Cule, of course, the order has been issued.
6 Earlier, I suggested that if you would want to engage in any
7 conversations with the Registry on the matter I earlier mentioned, of
8 course, this order in itself does not prevent you, if you would wish to
9 do so, to further contribute to finding solutions in the direction as
10 suggested by the Trial Chamber.
11 Is there any other matter to be raised at this moment?
12 Yes, Mr. Paro.
13 MR. PARO: Well, Your Honour, is it possible to get the written
14 decision now?
15 JUDGE ORIE: Yes. I think that within the -- we'll find a copy
16 for you of what was said. That could be part of the transcript, which
17 can be printed out, but then we would first is have to check whether the
18 transcript is perfect. And there is a written text, although, that
19 should first be copied and some other instructions from me should be
20 removed from that, because that goes beyond what the decision itself is.
21 Mr. Misetic.
22 MR. MISETIC: Yes, and just for the record, and so the Chamber
23 and Mr. Ambassador, keep in mind that we were in closed session for much
24 of today in terms of the transcript and how it will be used later.
25 JUDGE ORIE: Yes. Most of the submissions -- well, if we would
1 provide you with the transcript, it would be that specific portion. But
2 I think it would be better to copy the content and then the words
3 referring to you is taken out. It just reads the representatives of the
4 Republic of Croatia
5 We'll take care of that. All that has been said in private
6 session should remain confidential. It is mainly on the basis of the
7 confidentiality sought by the Republic of Croatia
8 would say, goes, without further explanation.
9 Then I would like to thank you very much, Mr. Ambassador, and
10 you, Mr. Cule, for coming at such short notice, and to -- to inform the
11 Chamber about your views and to inform the Chamber about the events that
12 have happened. It's highly appreciated that you have shown the
13 flexibility which perhaps was needed under the present circumstances,
14 but, again, it's very highly appreciated, and the Chamber would like to
15 thank you very much for that and, in general, for the cooperation of the
16 authorities of the Republic of Croatia
17 We now then, Mr. Kuzmanovic, are at a point what to do on Monday.
18 MR. KUZMANOVIC: Your Honour, we'll be ready to go on Monday.
19 JUDGE ORIE: You'll be ready to go?
20 MR. KUZMANOVIC: Based on the court's order, and I can inform the
21 Court and the parties that our witness on Monday will be Mr. Vurnek. No
22 protective measures have been sought, and he will be ready to go on
24 JUDGE ORIE: Yes.
25 Mr. Misetic, what could we expect as far as the participation of
1 the Gotovina in the proceedings on Monday as concerned?
2 MR. MISETIC: Obviously, I will talk to my client, but I expect
3 that -- I expect that he should be here on Monday.
4 JUDGE ORIE: Yes. Then we adjourn and will resume on Monday, the
5 14th of December, at 9.00 in the morning, in this same courtroom, number
7 --- Whereupon the hearing adjourned at 7.03 p.m.
8 to be reconvened on Monday, the 14th day of
9 December, 2009, at 9.00 a.m.