1 Tuesday, 19 January 2010
2 [Open session]
3 [The accused entered court]
4 [The witness takes the stand]
5 --- Upon commencing at 9.08 a.m.
6 JUDGE ORIE: Good morning to everyone in and around this
8 Mr. Registrar, would you please call the case.
9 THE REGISTRAR: Good morning, Your Honours. Good morning to
10 everyone in and around the courtroom.
11 This is case number IT-06-90-T, the Prosecutor versus Gotovina et
12 al. Thank you.
13 JUDGE ORIE: Thank you, Mr. Registrar.
14 Before we continue, Mr. Repinc, I would like to remind you that
15 you are still bound by the solemn declaration that you have given at the
16 beginning of your testimony.
17 Ms. Mahindaratne, are you ready to conclude your last 15 minutes
18 of cross-examination?
19 MS. MAHINDARATNE: I am, Mr. President. Thank you.
20 JUDGE ORIE: Please proceed.
21 WITNESS: DRAGUTIN REPINC [Resumed]
22 [Witness answered through interpreter]
23 Cross-examination by Ms. Mahindaratne: [Continued]
24 Q. Good morning, General.
25 A. Good morning, Madam Prosecutor.
1 Q. Now, yesterday at the close of business, we were discussing your
2 conclusions on the concept of the defence of populated areas, and you in
3 fact -- you in fact in your evidence indicated that you relied on
4 General Mrksic's directive of February 1995 --
5 MS. MAHINDARATNE: For the record, D944.
6 Q. -- as supporting your conclusions. Now, and you in fact,
7 yesterday, specifically pointed out paragraph 5.11 as the section of that
8 document that you relied on.
9 General, I put it to you that the defence of populated areas as
10 contemplated in that document is defence from outside the towns and not
11 from within, as asserted by you. How do you respond to that?
12 A. I can only say that what -- that I don't know what made you
13 conclude that, given that defence of towns includes the defence of access
14 routes to those towns and the towns themselves. This is explained in the
15 rules of the former army, where, in cases of town defences, such as in
16 the rules for brigades or other units, it is clearly stated how
17 settlements are to be prepared for defence.
18 Defending an access route to a town rather than defending the
19 town itself as well, would be illogical, because if any forces were --
20 forced to withdraw or defeated, would have to take a different route,
21 although both access routes and towns are legitimate targets in such
23 Therefore, I would not agree with you that a town is exclusively
24 defended outside its boundaries; a town is also defended within -- from
1 Q. Okay. Moving on, General.
2 MS. MAHINDARATNE: Mr. Registrar, if I could called 65 ter 3360
3 on the screen, please.
4 Q. You recall Mr. Kehoe showed you formats depicting the boundary
5 lines of the Gospic Military District and the Split Military District as
6 of 6th August and as of 14th August. I don't have to call those
7 documents. You probably remember that, General, do you? Do you remember
8 those documents?
9 A. Yes, I do.
10 Q. Now, I appreciate you may not have seen this document on the
11 screen. This is it an order dated 16th August of General Gotovina. And
12 I'll read the first few paragraphs. It says:
13 "Due to the changed" --
14 I'm sorry. Before that, do you recall that in that chart as per
15 those boundary lines drawn by the Defence as of 14th August, Gracac was
16 outside the area of responsibility of Split Military District? Do you
17 recall that?
18 A. Yes, I do.
19 Q. Now, in this order dated 16th August, 1995, it says:
20 "Due to the changed tactical and operational situation following
21 the offensive operations of our forces, and in order to properly organise
22 and execute the defence of the front line arrived at, I hereby order: The
23 commanders of OG Otric and OG Sajkovic shall immediately organise a
24 persistent and active defence on the line arrived at."
25 Paragraph 2 reads:
1 "OG Otric shall organise and execute an active and persistent
2 defence in the zone, right. Planinica" - and then there's a trigger
3 point given - "Stolinova Glava, Crijemusnjaka" - pardon my
4 pronunciation - "all excluded and left Sjenica, trigger point 1113; Una
5 railway station; Medak, trigger point 689; Veljko Sedlo, trigger point
6 1208; Gracac, all included."
7 So do you note from this order of General Gotovina dated
8 16th August that, as of 16th August, Gracac is included in the area of
9 responsibility of the Split Military District?
10 A. If we take this order, then, yes.
11 Q. Thank you.
12 MS. MAHINDARATNE: Mr. President, I tender this document into
14 MR. MIKULICIC: No objections, Your Honour.
15 JUDGE ORIE: Mr. Registrar.
16 THE REGISTRAR: Your Honours, this document becomes
17 Exhibit P2705.
18 JUDGE ORIE: P2705 is admitted into evidence.
19 MS. MAHINDARATNE: Thank you, Mr. President.
20 JUDGE ORIE: You read Medak, and I remember that we had already
21 some problems in locating village Medak, compared to the Medak pocket,
22 but here it reads both in the original and in the English translation
23 Mededak, which seems to be a bit different.
24 MS. MAHINDARATNE: Yes, Mr. President, my apologises for the
1 JUDGE ORIE: Please proceed.
2 MS. MAHINDARATNE:
3 Q. General, I want to draw your -- take you to paragraph 173 of your
4 expert report.
5 MS. MAHINDARATNE: If we could look at paragraph 173.
6 Q. And there you report as follows:
7 "The collective special police forces of the Ministry of the
8 Interior formally turned over the border in the territory of
9 Gornji and Donji Lapac to the units of the 118th Home Guard Regiment and
10 the Gospic Military District's 8th Home Guard Regiment while the
11 collective forces staff received an order."
12 Now your citation is there to an order which has no reference to
13 the special police handing over the borders of Gornji and Donji Lapac to
14 the units of the Gospic Military District. So can you tell the
15 Trial Chamber as to what your source of information is that on the
16 9th August - and that's -- your report is for the 9th August - the
17 special police forces handed over that territory formally to the
18 Gospic Military District, what are you relying on?
19 A. I relied on a report drafted by General Markac for that day,
20 which he sent to the Chief of Staff, General Cervenko, whereby it is
21 stated that there had been a hand-over of that area. It says here
22 Donji and Gornji Lapac, however, it is actually the border with
23 Bosnia and Herzegovina, that is to say, the area given to the
24 Military District of Gospic. That was north of the railway station in
1 The Military District of Gospic introduced five
2 Home Guard Regiments, and each one of them took over a certain portion of
3 the area. The first area was taken by the 8th Home Guard Regiment, next
4 118th, 154th, 134th, and I think that was the sequence more or less.
5 Q. General, now, you say there had been a handover of that area, it
6 says here Gornji and Donji Lapac; however, it is actually the border with
7 Bosnia and Herzegovina. Now what you have reported here is that on
8 9th August, the special police forces handed over the -- you say the
9 border in the territory of Gornji and Donji Lapac. Now where did you
10 read that on the 9th August the special police forces handed over this
11 territory? Now you're saying it's the border with Bosnia and Herzegovina
12 but my question is with regard to Gornji and Donji Lapac. Where did you
13 read that?
14 A. I based that conclusion on the fact that the special police
15 forces pulled out of that area and returned to their home units.
16 Q. So you -- on the basis that the special police forces left the
17 area on the 9th August, you presumed that there was a formal hand-over of
18 the territory from the special police to the Gospic Military District?
19 A. I don't think it was a formal hand-over, but one in real terms.
20 If we try to look into the analysis of the commander of the
21 Military District of Gospic concerning those facts - please bear with me.
22 I'm looking for a reference concerning that report.
23 Q. General, my time is --
24 A. I understand it.
25 I apologise for being unable to find it now. I would have to go
1 through the material I have to come up with the exact reference
2 pertaining to the report of the commander of the
3 Gospic Military District.
4 Q. But, General, in your answer just now, you just said -- this is
5 what you say:
6 "It wasn't a formal hand-over, but in real -- I don't think it
7 was a formal hand-over but one in real terms."
8 But you have -- what you have reported in paragraph 173 is that
9 there was a formal hand-over. You say formally turned over. Now, are
10 you withdrawing from that position, or have you made a mistake there in
11 paragraph 173 with regard to the formal hand-over?
12 A. I'm afraid I have to apologise for that. This was a real
13 hand-over. In Croatian when you say "formal," it may have a pro forma
14 connotation; one can wonder whether it was done in full or not.
15 Therefore, the issue would be whether such a hand-over was carried out in
16 full or partially only.
17 JUDGE ORIE: Ms. Mahindaratne, just for my understanding, is it
18 that you want to test the accuracy of the formal or not formal hand-over
19 and the sources; or is there a challenge to the fact that the special
20 police withdrew from that area and that other units here - Gospic
21 Military District - took responsibility for this area? Is it the
22 substance or is it accuracy, reliability, what we are talking about?
23 MS. MAHINDARATNE: The substance, Mr. President. We have not
24 come across any evidence to show that the special police forces handed
25 over the territory formally or in real terms to the Gospic Military
1 District units, and --
2 JUDGE ORIE: We heard -- at least the testimony of some members
3 of the special police, who said that at a certain moment they -- they
4 left the area and returned to their own bases, isn't it?
5 MS. MAHINDARATNE: Some units, Mr. President. But there is
6 evidence that -- that there was a base set up in Donji Lapac for a period
7 of time.
8 JUDGE ORIE: Which stayed there.
9 MS. MAHINDARATNE: Yes, Mr. President.
10 JUDGE ORIE: Until?
11 MS. MAHINDARATNE: Until -- it's not exactly certain as to -- so
12 I'm trying to inquire as to what this -- what General Repinc's source of
13 information is.
14 JUDGE ORIE: Yes.
15 MS. MAHINDARATNE: Since he has referred to this.
16 JUDGE ORIE: Yes, now it's at least clear to me what are you
17 aiming at.
18 Mr. Repinc.
19 THE WITNESS: [Interpretation] Apologies, I finally found the
21 This is the document analysis of Operation Storm, 1995, the
22 Military District of Gospic command, dated the 30th of August, 1995.
23 MS. MAHINDARATNE:
24 Q. General, if you could give us the footnote, we could call up that
25 document on the screen. Footnote in your --
1 A. It says footnote 105.
2 JUDGE ORIE: Which is 3D00641. You would like to have it on the
4 MS. MAHINDARATNE: Yes, Mr. President.
5 JUDGE ORIE: 3D00641.
6 THE WITNESS: [Interpretation] At page 7 of that document,
7 concerning the activities of the 8th Home Guards Regiment --
8 MS. MAHINDARATNE: Mr. Registrar, if we could have --
9 MR. MIKULICIC: This is page 8 in e-court in Croatian version.
10 MS. MAHINDARATNE:
11 Q. And the English version would be --
12 A. 7.
13 MR. MIKULICIC: Page 8 in English version as well.
14 MS. MAHINDARATNE:
15 Q. General, could you draw our attention to the paragraph you
16 relied on?
17 A. The penultimate paragraph. However, it's not on this page. Yes,
19 "On the fourth day, a single regiment ..."
20 THE INTERPRETER: Interpreter's correction, a single battalion.
21 MS. MAHINDARATNE:
22 Q. I believe it's the next page in the English version.
23 MS. MAHINDARATNE: Mr. Registrar, if we could have the next page.
24 Q. General, can you please let us know which paragraph you're
25 relying on to --
1 A. It is the penultimate paragraph, referring to the
2 8th Home Guards Regiment.
3 "On the fourth day ..."
4 Q. So as I understand your testimony to be, you read this
5 paragraph as indicating that there has been a formal hand-over of the
6 territory from the special police to the Gospic military police --
7 Gospic Military District units. Is that correct?
8 A. I was trying to say that the Military District of Gospic split
9 the area into five areas: First we have the 8th; then the
10 118th Home Guards Regiment; and if we move to page 9, we see that the
11 task that took place first was mopping up; and after that, they took up
12 positions along the border.
13 On that page, we have the 118th Regiment.
14 Q. Which page are you referring to?
15 A. Page 9 in the Croatian.
16 MR. MIKULICIC: That would be page 9 in e-court. I'm sorry,
17 page 10.
18 MS. MAHINDARATNE:
19 Q. General, due to lack of time, is it correct, then, that the
20 source you're relying on to support your report record in paragraph 173
21 that, on 9th August, the special police forces handed over this territory
22 to the Gospic Military District unit, is this document. Is that correct?
23 A. [No interpretation]
24 JUDGE ORIE: Apparently English translation is not ...
25 THE INTERPRETER: Excuse me, I was on the wrong channel,
1 Your Honours.
2 Can the witness repeat the answer.
3 JUDGE ORIE: Can you please repeat your answer because we missed
4 the English translation.
5 The question put to you by Ms. Mahindaratne was whether it
6 was this document which was the source for your conclusion that, on
7 9th of August, the special police forces handed over the territory to the
8 Gospic Military District. And we're talking about the area of
9 Donji and Gornji Lapac and the state border nearby.
10 Could you please repeat your answer.
11 THE WITNESS: [Interpretation] Yes.
12 The report of the commander of the Gospic Military District is
13 one of these, and it states what its units were doing every day. It
14 states that in that period of time, the units reached the state border;
15 namely, 118th, in the region of Kulen Vakuf. This was confirmed in
16 another document as well, namely the analysis of Operation Storm produced
17 by the special police where, at page 18, it is stated that at 1400 hours
18 on the 9th of August, members of the Home Guard Regiment handed over
19 their positions in the general area of Kulen Vakuf, the villages Kalati,
20 Ostrovica, suma Laniste, which is the unit that was deployed from
21 Donji Lapac and moving toward Kulen Vakuf.
22 At page 19, it is stated that the IKM -- the IZM, the forward
23 command post of the special police in Ostrovica, ceased to exist. And
24 the special police units were sent to their home units upon the order of
25 the commander.
1 MR. MIKULICIC: [Previous translation continues] ... 614, page 18
2 and 19 in e-court, Croatian version.
3 JUDGE ORIE: I missed the letter. Was it D or P?
4 MR. MIKULICIC: P, Your Honour.
5 JUDGE ORIE: Thank you.
6 MS. MAHINDARATNE:
7 Q. General, I was trying to find in these documents that you relied
8 on a specific time-frame at which the special police handed over this
9 territory to the Gospic Military District.
10 MS. MAHINDARATNE: Mr. President, if I could have a minute.
11 MR. MIKULICIC: English version of the e-court of document P614
12 relies on page 15. That is a data entered for 9 August, 1995, under the
13 1030 hours.
14 [Prosecution counsel confer]
15 MR. MIKULICIC: Sorry, 14 hours.
16 JUDGE ORIE: Which reads -- yes, because ... 14 hours reads:
17 "Members of the Home Guard Regiment executed the hand-over of
18 positions in the general area of Kulen Vakuf from Kalati village,
19 Ostrovica village, the Laniste woods.
20 MR. MIKULICIC: And on the next page is enter for 1900 hours.
21 JUDGE ORIE: Well, the witness is supposed to give us the
22 sources. It's -- it's appreciated that you point us to P641 [sic] as
23 being the number of the document the witnesses apparently is referring
24 to, but I think it's for the witness to tell us where he initially said
25 page 18, page 19, that it is on another page that we find the answer to
1 the questions.
2 THE WITNESS: [Interpretation] Yes.
3 MR. MIKULICIC: The witness was referring on hard copy documents
4 page --
5 MS. MAHINDARATNE:
6 Q. General, do you have anything to add to this?
7 A. I apologise. I don't have the document on the screen, so I
8 didn't intervene.
9 But, as I said, based on the reports from the Gospic Military
10 District, which clearly state that the units reached the state border and
11 took control of it, and based on the report from the special police
12 commander for the 9th of August, 1995, my conclusion is that the special
13 police units left the area and returned to their home units.
14 Q. Based on that, would you then agree that if there was some form
15 of hand-over on 9th August from special police forces to the
16 Gospic Military District, then that territory was under the control of
17 the special police forces from the point of capture of that territory
18 until such hand-over?
19 A. As for control, control was not exercised throughout the border
20 areas taken by the Gospic Military District. Rather, it was the case
21 only in relation to the area that was drawn in my report for that
22 particular date, and that involved the general area of Kulen Vakuf.
23 Q. General, I'm referring to paragraph 173 where you include the
24 area of Gornji Lapac and Donji Lapac. My question to you is, If there is
25 an formal hand-over of that territory on a specific date from special
1 police to Gospic Military District units, then that would interfere,
2 isn't it right or would you agree with me that up to such point of
3 hand-over, that territory is within the control of the special police,
4 otherwise an issue of handing over doesn't arise, isn't it?
5 A. We're going back to my earlier answers where I said that the
6 special police was not competent to exercise control over the
7 territories. As of the 7th of August, if we're talking about the area of
8 Lapac, there weren't only special police units but also the
9 9th Guards and the 118th Home Guard Regiment, all of which were from the
10 Gospic Military District, as well as others from that district.
11 Q. General, I have no further questions for you.
12 MS. MAHINDARATNE: Mr. President, I conclude my examination.
13 JUDGE ORIE: Thank you.
14 Mr. Mikulicic, I earlier tried to gently refrain from giving us
15 the sources in this document, which pages. And then you said, Well, the
16 witness is looking at the hard copy.
17 Now, both in English and in B/C/S, the hard copy page numbering
18 is exactly the same as in e-court, so, therefore, instead of just
19 remaining silent, which, of course, is your right under those
20 circumstances, I really have great difficulties in understanding how this
21 could be an answer to my gentle effort to elicit from the witness the
23 MR. MIKULICIC: Your Honour, with all due respect, I think the
24 pagination in hard copy and the e-court is not exactly the same. I think
25 the difference is one page.
1 JUDGE ORIE: Well, I have got for English page 15, that is page
2 at the bottom.
3 MR. MIKULICIC: Yes.
4 JUDGE ORIE: Page 15 in English gives as a page source at the top
5 15 out of 39.
6 MR. MIKULICIC: Yes.
7 JUDGE ORIE: So, therefore, 15 is 15.
8 Now, we have -- in the B/C/S version, I see paging numbering
9 appearing at the top. Page 15 is ERN 0349-3610, which is, in the B/C/S,
10 page 15 out of 51.
11 Therefore -- and even if it would be one page different, then, of
12 course, to -- if the witness says page 18, 19, to tell him that it is on
13 15, then even if there is one page number difference, then it still is
14 covered by my observation, that we rather leave it to the witness to find
15 the pages on which he relied. But since you did respond to what I said,
16 I have great difficulties in understanding where the page differences
17 are, unless you have a different e-court or different hard copies.
18 Let's leave it behind us. It's not a dramatic matter.
19 If I made a mistake, of course, I'm quite willing to -- not only
20 to acknowledge that but even to apologise if I have been unfair.
21 MR. MIKULICIC: Well, sometimes it's really different to rely on
22 hard copy, e-court copy, English version, B/C/S version, and above that,
23 there is another version of this document.
24 JUDGE ORIE: Yes. But if I give guidance as who is to answer the
25 question, who is to find the sources --
1 MR. MIKULICIC: Your Honour, I respect that.
2 JUDGE ORIE: -- then you will understand that unknown copies of a
3 different origin are not included in I -- and I think appropriately, I
4 find my basis for my observations of what I see in e-court and what I see
5 as images of what appear to be hard copies.
6 Let's -- let's not spend any more time on it.
7 The sequence at this moment, I did understand there is some need
8 for further questions. Would it not be best if -- because -- that we
9 first give an opportunity to the other Defence teams so that can you
10 cover that --
11 MR. MIKULICIC: Yes, agree, Your Honour.
12 JUDGE ORIE: -- area as well when re-examining the witness.
13 Wouldn't that be the most logical sequence?
14 MR. MIKULICIC: I agree with that.
15 JUDGE ORIE: Mr. Kehoe, Mr. Kay? Unless you disagree.
16 MR. KEHOE: No, no. No, it's fine. It's quite all right.
17 Further cross-examination by Mr. Kehoe:
18 Q. Good morning, General.
19 A. Good morning.
20 Q. If I could bring back up on the screen P2705, which counsel
21 showed you, which is the 16 August 1995 order by General Gotovina.
22 THE REGISTRAR: Could you please repeat the reference.
23 MR. KEHOE: I think it's P2705, 2705.
24 Q. Now, General, this is the order that counsel showed to you. And
25 as can you see in the preamble of the order, there's no reference to any
1 order by the Main Staff.
2 MR. KEHOE: And if we can turn to the second page, you can see --
3 I'm sorry -- if we can turn to the second page in B/C/S, please.
4 And if I may, the third page in the B/C/S. I wanted the bottom,
5 who this is being sent to. There we go.
6 Q. And you can see in that document that is not being -- has not
7 been sent by General Gotovina to the Main Staff.
8 So let us go back to the documents that I showed you the other
9 day, and then show you yet another one.
10 And if we could go back to D559, which is General Cervenko's
11 order of 14 August, 1995, where he changed the areas of responsibility
12 that we set forth in the map.
13 [Trial Chamber confers]
14 MR. KEHOE:
15 Q. Now, General, as you can see in this document, of course, it has
16 the filing number of 512-06-05/01, 95485. And on the last two pages of
17 this order by General Cervenko, we have the Split Military District areas
18 of responsibility set forth. And if you can could just -- I don't expect
19 you to memorise it -- if you can keep that particular document
20 identification number in mind, I would like to complete this and show you
21 a document that has not been examined this morning. D1002, which is
22 General Gotovina's order of 20 August, 1995.
23 Now, General, would you agree with me that the first two lines of
24 the preamble of this order refers back to General Cervenko's order of
25 14 August 1995?
1 A. Yes.
2 MR. KEHOE: And let us turn to -- to page 3 in the English,
3 and -- frankly, I'm not certain what it is in the B/C/S, but it is after
4 number 2. Go on to ...
5 If we can go to the -- excuse me. Page 3 ...
6 [Defence counsel confer]
7 MR. KEHOE: If we can turn the page in the English, please. Can
8 we turn the page in the English. There we go. In the middle of the page
10 Q. As you can see in point 2 in the areas of responsibility,
11 General Gotovina tracks the areas of responsibility set forth in
12 General Cervenko's order of the 14th of August, 1995, doesn't he?
13 A. Yes.
14 Q. So, in this particular order, what we see is General Cervenko
15 giving the order and then ultimately General Gotovina sends it down to
16 his subordinates; isn't that right?
17 A. Correct.
18 MR. KEHOE: Your Honour, I have nothing further. Thank you.
19 JUDGE ORIE: Thank you, Mr. Kehoe.
20 Yes, I changed the order a bit because in some respects it may be
21 that questions are also addressing matters which were raised by the
22 Prosecution. That's what I had on my mind. And since there seem to be
23 no --
24 Mr. Kay, do you have any --
25 MR. KAY: No questions, Your Honour.
1 JUDGE ORIE: No questions.
2 Then, Mr. Mikulicic.
3 MR. MIKULICIC: Your Honour, I will have no questions.
4 JUDGE ORIE: You have no questions.
5 I'm just checking a few matters.
6 I'm still struggling with the page numbers, Mr. -- because I
7 tried now to compare. What I see is that on page 18 of the report we
8 find the reference which is to be found in the English translation on
9 page 15. Is that what we really have? So the reference to page 18 was
10 correct for the B/C/S.
11 MR. MIKULICIC: Yes, Your Honour.
12 JUDGE ORIE: But it's page 15, and there's no -- so the numbering
13 is not different between e-court and hard copies, but it is English
14 compared to B/C/S.
15 MR. MIKULICIC: That is correct, Your Honour.
16 JUDGE ORIE: Then I found my way through this document.
17 [Trial Chamber confers]
18 Questioned by the Court:
19 JUDGE ORIE: Mr. Repinc, in paragraph 129 of your report, you
20 refer to a report by General Markac, that, with artillery support, on the
21 5th of August, by 11.30, the collective special police forces managed to
22 take full control over -- of Gracac.
23 Could you -- do you have further details as far as the use of
24 artillery or the artillery support is concerned?
25 A. As far as artillery is concerned, I did not specifically refer to
1 it in this analysis of mine, save for the portions where the order is
2 mentioned, an order which is admittedly not dated or signed. But it says
3 that the attack was conducted with artillery support at the disposal of
4 the special forces, as well as the reports which -- or even the
5 Main Staff orders, which refer to the fact that the special police should
6 have received the support from some of the forces of the Zadar OG,
7 130-millimetre cannons, howitzers, and one multi-barrel rocket-launcher.
8 I also mentioned it when I spoke of - I don't know exactly which
9 paragraph that was - the diary of the Zadar Operational Group where I
10 found certain references to the fact that 130-millimetre cannons were
11 used to target. And then in some places it says Gracac, in others it
12 says the Gracac area or the Gracac direction, so I can't really be sure
13 of the targets themselves, since they were nowhere to be found in the
15 At any rate, mention was made of firing in that general area as
17 JUDGE ORIE: Yes. But you have no further details, as ...
18 A. No. All the documents I reviewed failed to reveal anything that
19 would give me an accurate indication of the targets involved and the
20 amount of ammunition consumed, save for the information that
21 130-millimetre cannon had fired 122 rounds during the operation.
22 JUDGE ORIE: Thank you for that answer.
23 Usually I asked whether the questions of the Bench, but I should
24 now ask whether the question of the Bench has triggered any need for
25 further questions.
1 If not, this concludes your testimony, Mr. Repinc. I would like
2 to thank you very much for coming a long way to The Hague and for making
3 yourself available for a couple of days, even after the weekend. And I
4 wish you a safe return home after again having thanked you for answering
5 all the questions that were put to you, both by the parties and by the
7 Thank you, and you may -- you are excused. You may follow the
9 THE WITNESS: [Interpretation] Thank you for your understanding.
10 [The witness withdrew]
11 JUDGE ORIE: Mr. Mikulicic, is the Markac Defence -- oh, no,
12 first of all, we have to decide on the admission into evidence of the
13 report of Mr. Repinc.
14 MS. MAHINDARATNE: We have no objection, Mr. President.
15 JUDGE ORIE: No objections.
16 Mr. Registrar, could you assist me, whether a number had already
17 provisionally assigned. I think it has been assigned and that was
18 number ...
19 [Trial Chamber and Registrar confer]
20 JUDGE ORIE: That's D1932. And D1932 is admitted into evidence.
21 Mr. Mikulicic, I started a sentence asking whether the
22 Markac Defence was ready to call its next witness.
23 MR. MIKULICIC: Yes, we are, Your Honour. Our next witness will
24 be Mr. Tomislav Penic.
25 JUDGE ORIE: Yes. No protective measures.
1 If someone could inform the Usher that the next witness can be
2 brought into the courtroom.
3 [The witness entered court]
4 JUDGE ORIE: May I take it that since the other Defence teams
5 have not responded to the 92 ter submission that there are no objections?
6 Mr. Kay, you are apparently agreeing.
7 MR. MISETIC: No objections, Mr. President.
8 JUDGE ORIE: And the Prosecution has filed a submission that they
9 do not oppose the admission into evidence of the 92 ter statement.
10 Good morning, Mr. Penic. Can you hear me in a language you
12 THE WITNESS: [Interpretation] Very well, sir. I can understand
13 you fully well.
14 JUDGE ORIE: Before you give evidence in this Court, the Rules of
15 Procedure and Evidence require that you make a solemn declaration, that
16 you will speak the truth, the whole truth, and nothing but the truth.
17 The text is now handed out you by the Usher. May I invite you to make
18 that solemn declaration.
19 THE WITNESS: [Interpretation] I solemnly declare that I will
20 speak the truth, the whole truth, and nothing but the truth.
21 WITNESS: TOMISLAV PENIC
22 [Witness answered through interpreter]
23 JUDGE ORIE: Thank you, Mr. Penic. Please be seated.
24 Mr. Penic, you will first be examined by Mr. Mikulicic.
25 Mr. Mikulicic is counsel for Mr. Markac, and he is seated over there.
1 Mr. Mikulicic.
2 MR. MIKULICIC: Thank you, Your Honour.
3 Examination by Mr. Mikulicic:
4 Q. [Interpretation] Good morning, Mr. Penic.
5 A. Good morning.
6 Q. For the sake of the record, could you please state your full
7 first and last name.
8 A. My name is Tomislav Penic.
9 Q. In order to ensure good conditions for interpretation, could you
10 please pause before providing your answers. Also, during your testimony,
11 do pay attention to speaking as slowly as possible so as to enable the
12 interpreters to do their work in the best possible way.
13 What is your current occupation, Mr. Penic?
14 A. I am a lawyer with a private practice in Zagreb. The law firm is
15 called Penic and Company.
16 MR. MIKULICIC: [Interpretation] Could we please have 3D04-1901.
17 Q. Mr. Penic, you are about to see your statement on the screen. Do
18 you recall having given a statement to Mr. Markac's Defence concerning
19 your testimony?
20 A. Yes, it was in your office. You and Mr. Rendulic were in
22 Q. Is this the statement you have before you?
23 A. Yes.
24 Q. I'd kindly ask the Registrar to show us the last page of the
25 statement so that Mr. Penic could identify his signature.
1 A. That is my signature.
2 Q. Mr. Penic, while you were giving this statement, to the best of
3 your belief and knowledge, did you tell the truth about the events we
5 A. I gave the statement to the best of my recollection, given the
6 time which elapsed between then and the giving of the statement.
7 Q. Did you have an occasion -- did you have occasion to read through
8 the statement afterwards, before signing it?
9 A. Yes.
10 Q. If I put the same questions to you today as they were put to you
11 while you were giving your statement, would you provide the same answers?
12 A. The answers would be the absolutely the same, because, in the
13 meantime, I was unable to recall anything of significance.
14 MR. MIKULICIC: [Interpretation] I seek to tender this document,
15 Your Honour.
16 MR. HEDARALY: I have no objection. I just -- I don't want to be
17 overly technical, but I just don't think the witness has confirmed that
18 it accurately reflected what happened in the interview.
19 Just put one more question to the witness, and I'm sure that
20 after that answer we will have no objection.
21 JUDGE ORIE: Mr. Mikulicic, would there be any problem if
22 Mr. Hedaraly puts that question to the witness now, so that you are
24 Would that not be more practical?
25 MR. HEDARALY: Mr. Penic, does the statement that you see on your
1 screen, does that accurately reflect what you told Mr. Mikulicic in that
2 interview of the 15th of May, 2009?
3 THE WITNESS: [Interpretation] That was the way I understood
4 Mr. Mikulicic's question, and I answered in that vein. I'm afraid I
5 don't understand you now.
6 JUDGE ORIE: Yes. Now, I think the proper sequence is, and
7 that's not exactly what Rule 92 ter says, first of all: What's put on
8 paper, does that reflect what was said? That's very factual. Second:
9 Is what you said, and therefore what is now on paper, is that a statement
10 given to the best of the recollection and in accordance with the truth?
11 That's the second. And the third issue is whether the witness, if same
12 questions would be put to him today, whether he would give similar
14 Each of them gives a piece in the chain, which is there to
15 establish the highest level of reliability of the written statement
16 compared to the -- what is in the memory of the witness.
17 Mr. Registrar. Yes, the number would be?
18 THE REGISTRAR: This document will be assigned Exhibit D1935.
19 Thank you.
20 JUDGE ORIE: D1935 is admitted into evidence.
21 The reason that it has happened before, where there was no formal
22 objection, because it's how we usually understand the answers of the
23 witnesses, it is very technical. Nevertheless, it doesn't hurt if we try
24 to remind ourselves what exactly these questions are there for.
25 Please proceed, Mr. Mikulicic.
1 MR. MIKULICIC: [Interpretation] Thank you, Mr. Presiding Judge.
2 Q. Mr. Penic, you told us that you are a lawyer and that you have a
3 private practice in Zagreb in a law firm.
4 A. Yes.
5 Q. During the homeland war between 1990 and onwards --
6 MR. MIKULICIC: [Interpretation] Mr. Presiding Judge, I apologise.
7 I am being reminded that I should acquaint the public with the summary of
8 Mr. Penic's statement. By your leave, I would like to do that now. It
9 seems that I have difficulty getting acquainted with that part of the
11 JUDGE ORIE: There's still a list outstanding, Mr. Mikulicic.
12 Please proceed.
13 MR. MIKULICIC: [Interpretation] Mr. Penic is a lawyer currently
14 working in his private practice in Zagreb. During the homeland war, he
15 was an employee of the state administration. More precisely, between
16 1995 and 1999 he was assistant minister of justice in the field of
17 criminal law. At the same time, he was secretary of the state commission
18 for pardons.
19 The Ministry of Justice took no part whatsoever in the creation
20 of court practice, jurisprudence, or decisions made by the regular or
21 military courts. It exerted no influence over the work of judges or
22 prosecutors in any specific cases. The ministry carried out
23 administrative tasks concerning the functioning of the judiciary.
24 Mr. Penic, as assistant minister in the field of criminal law,
25 worked on the various legal drafts pertaining to that area, including the
1 Law on Pardon. Great effort was made to construct a modern judicial
2 system of the newly created Republic of Croatia. After the occupied
3 territories were liberated, courts were established. There were
4 difficulties in their work, because during the occupation of those
5 territories of Croatia, land registers and court registers were partially
6 or completely destroyed, along with other types of court documents.
7 Mr. Penic took part in the work of the state commission for
8 pardons, which processed applications for pardon. After that commission
9 was given the opinions of relevant prosecutors, they would submit entire
10 files for final decision to the president of the state. The Croatian
11 parliament also, on several occasions, adopted the Law on Pardons as well
12 as different amendments to that law concerning crimes committed during
13 the homeland war with the exception of war crimes.
14 Mr. Penic, on several occasions as an employee of the
15 Ministry of Justice, appeared before the media in the FRY, explaining the
16 measures put in place by the Croatian state, vis-à-vis criminal liability
17 of the rebelled Serb population in the territory of Croatia, as well as
18 concerning the issues of pardon and amnesty in terms of criminal
20 This concludes the summary of Mr. Penic's evidence.
21 Q. Mr. Penic, I would kindly ask you to briefly explain to us what
22 your work was in the Ministry of Justice, focussing on the specific area
23 of your work.
24 A. After so many years, it is difficult for me to explain that, also
25 coupled with the fact that I'm in a completely different field nowadays.
1 It is difficult for me to be precise, especially in terms of dates and
2 numbers. However, I recall very well something that was important to all
3 of us at the time, i.e., all the priorities we worked on and the dynamics
4 of the processes.
5 I recall the period when I arrived the Ministry of Justice, after
6 having worked in the State Prosecutor's office. The entire state
7 administration was being structured and created. In the
8 Ministry of Justice, at the time, there was a new administration for
9 criminal law that was being established. I was put at the helm of it as
10 assistant minister for criminal law.
11 At the time, as well as today, I believe, it had a separate
12 department for pardons and a department for criminal regulation. I was
13 appointed by the Croatian government as an expert and professional in the
14 field, tasked with providing professional opinion and processing of
15 pardon applications so as to prepare the files to be put before the state
16 commission for pardons. In other words, I carried out a professional
17 administrative work. I believe at that time and under those
18 circumstances, we were able to provide some quality work.
19 On the other hand, during that time, Croatia took over much of
20 the legislation of the former state, which disintegrated. Once our
21 courts and other judicial bodies were set up, they followed that
22 regulation, which was inherited from the former state. Our task at that
23 time was to prepare and draft a legislative framework and specific
24 regulations which would be originally Croatian, if I may say so.
25 In that regard, expert Working Groups were established within the
1 Ministry of Justice, which worked as part of the administration that I
2 was the head of and with its support. Some prominent professionals were
3 included from the judiciary, the academic circles, and so on and so
4 forth. That body proposed a number of laws in the criminal field to the
5 Croatian government and, afterwards, the parliament. This included the
6 Law on Criminal Procedure, the criminal law, and so on and so forth.
7 Q. Mr. Penic, tell us something about the relationship between the
8 Ministry of Justice and the judiciary, the presidents of courts and
9 judges who performed their duties.
10 A. From my immediate experience, I can tell you that given the
11 separation of power in Croatia into the three branches of government, we,
12 in the Ministry of Justice, were, de facto, a service at the disposal of
13 the prosecutor's offices and courts. The ministry, not directly my
14 administration but the administration for organisational and personnel
15 matters, was charged with providing all the necessary conditions for
16 unimpeded work of the courts.
17 There was no possibility for us as employees of the
18 Ministry of Justice to participate in the work of the courts and,
19 God forbid, to have any sort of involvement with case files. It was our
20 task to be their administrative, technical, and any other support
21 required for them in order to do their work properly under the
23 Q. Mr. Penic, let me go back to transcript, page 28, line 11, where
24 you said that the Ministry of Justice didn't have any powers in relation
25 to the courts. And you said the word -- you mentioned the term
1 "de facto." Did you use another Latin term?
2 A. De jure.
3 Q. Thank you. Mr. Penic, you told us that you also performed the
4 duty of secretary in the state commission for pardons. In what way did
5 the commission work? What was the procedure applied in the work of the
7 A. In my view, at the time, there was a general shortage of lawyers
8 and professionals in general. Since I was at the head of the
9 administration for criminal law, it came about - I don't know in which
10 way - that the following procedure was put in place. Since I was
11 assistant minister for -- of justice for criminal law, I was also
12 appointed secretary of the commission for pardons. This was to ensure
13 that the administration for criminal law headed by me and in charge of
14 the business related to pardons would have continuity in its work,
15 consistency in its work. It involved human destinies, human tragedies,
16 these were applications arriving from individuals who, for various
17 reasons and under various circumstances, came to be perpetrators of
18 crimes or accessories thereof.
19 Specifically, when we received an application for pardon, the law
20 allowed to us forward such an application directly to the president of
21 the state. However, the president would return the files to the
22 Ministry of Justice, because we were in charge of processing them.
23 We would categorise these applications by the category of crimes,
24 their gravity, and occasionally according to the location where they were
25 committed. We tried to react promptly, be efficient, and not waste undue
1 time. We would send these files to the courts seized of these cases,
2 because this was dictated by the law for their opinion. We also sent
3 them to state prosecutors and law -- for their opinion. If the
4 individuals applying for pardon were serving their sentences, we would
5 also seek the opinion of prison authorities. Based on all of the
6 foregoing, we would put together a file containing all the evidence and
7 documents. And complete with the opinion of the minister of justice, the
8 file would be sent to the commission, which, at its meetings, would issue
9 very specific recommendations to the president of the state, if and why
10 certain individuals should be pardoned. For the most part, the president
11 of the state would adopt these regulations.
12 I don't think if there is anything else you are interested in.
13 Q. Let me just put another question to you before the break.
14 In the period between 1992 and 1995, to the best of your
15 recollection, what was the ethnic make-up of the applicants for pardon?
16 A. Well, there were all sorts. I don't want you to hold me to the
17 numbers that I give you. But most of them, most of the applications for
18 pardons, came from members of the paramilitary Serb units, predominantly
19 these were individuals of Serb ethnicity. I think that two thirds were
20 actually them, so that would be the ratio.
21 MR. MIKULICIC: [Interpretation] Your Honour, perhaps this would
22 be a convenient moment for our break.
23 JUDGE ORIE: Yes. We will have a break.
24 Before we do so, however, I'm still, Mr. Mikulicic, my -- I'm a
25 bit slow on my mind now and then. We had a look at this entry of 1400
1 hours on -- in the --
2 MR. MIKULICIC: [Microphone not activated]
3 JUDGE ORIE: Which is in the -- progressed on the sixth day of
4 Operation Storm, hand-over of positions in the general area of
5 Kulen Vakuf from Kalati village, Ostrovica village, and the Laniste
6 woods. Is my understanding correct - and I'm addressing both
7 parties - that Kulen Vakuf is in Bosnia, not in Croatia?
8 MR. MIKULICIC: That's correct, Your Honour.
9 JUDGE ORIE: Kalati is in Bosnia, is not in Croatia?
10 MR. MIKULICIC: That's -- that place is almost strictly based on
11 the border between the Republic of Croatia and Bosnia and Herzegovina.
12 JUDGE ORIE: Yes.
13 MR. MIKULICIC: So it's a border area.
14 JUDGE ORIE: It's a border area. Then Ostrovica village is also
15 close to Kulen Vakuf but still on Bosnian territory; is that ...
16 MR. MIKULICIC: Well, of that village, I'm not certain,
17 Your Honour, but I could check --
18 JUDGE ORIE: If you could check on maps, perhaps that we have a
19 proper understanding of whether the hand-over of positions was referred
20 to by using names of villages in Bosnia or by using names of villages in
21 Croatia. And, to be quite honest, if you could locate the Laniste woods,
22 that would certainly assist the Chamber further in understanding the
23 document and the testimony of the last witness.
24 With this invitation to the parties, we will have a break,
25 Mr. Penic, and we'll resume at five minutes to 11.00.
1 --- Recess taken at 10.32 a.m.
2 --- On resuming at 11.06 a.m.
3 JUDGE ORIE: I again apologise for the late start. But meetings
4 during the break took more time than expected.
5 Mr. Mikulicic.
6 MR. MIKULICIC: Your Honour, as it refers to the discussion
7 immediately before the break, I have a map, which was already in the
8 evidence, on which we can find places like Ostrovica, Kalati, but we
9 cannot find Laniste woods. It is not on the map.
10 JUDGE ORIE: No. Well then we are facing similar problems that
11 the villages are mentioned on the maps; the woods are not.
12 MR. MIKULICIC: Yeah.
13 JUDGE ORIE: Then -- well, then at least we have --
14 MR. HEDARALY: And just for further assistance, the three places,
15 Kulen Vakuf, Ostrovica, and Kalati are all close by. Ostrovica is around
16 nine kilometres east of Donji Lapac across the border, if that can help
17 find it on the map.
18 JUDGE ORIE: Yes. I found the others on the map, just not
19 Laniste. And I just wanted to be sure that I was looking at the same
20 villages as the parties think I was.
21 MR. MIKULICIC: So I think the best source is P190.
22 JUDGE ORIE: Yes.
23 Then, please proceed, Mr. Mikulicic.
24 MR. MIKULICIC: Thank you, Your Honour.
25 Q. [Interpretation] Mr. Penic, let us go back to the discussion we
1 had before the break concerning pardons.
2 Which were the crimes involving the applicants for pardon who
3 were ethnic Serbs taking part in the armed rebellion that were granted
4 pardons, generally speaking?
5 A. For the most part, these were crimes committed in the war, during
6 the war, and related to the war. I think that in the highest of
7 percentages, the crime was participation, aiding and abetting in an armed
8 rebellion, and failure to respond to a military call-up. These, were for
9 the most part, the crimes involved when it came to pardon, with the
10 exception of the crimes that were under the law, the ones which were the
11 gravest crimes, and they were namely war crimes and the crime of
13 THE INTERPRETER: Can Mr. Mikulicic please repeat the number he
14 is seeking to be called up. The interpreter could not catch up that
16 JUDGE ORIE: The number you wanted to --
17 MR. MIKULICIC: Yes.
18 JUDGE ORIE: -- call up Mr. Mikulicic, could you ...
19 MR. MIKULICIC: Yes, I will repeat, Your Honour.
20 [Interpretation] The number is 3D00292, and we it on our screens.
21 Q. This is the decision granting the pardon to convicts from the
22 month of November 1992, that's to say, the 10th of November.
23 To the best of your knowledge, at what point in time did the
24 procedure commence of the issuing of decisions granting pardon?
25 A. As far as I remember, it was immediately following the so-called
1 log revolution, that's to say, the month of August of 1990. Or 1991; I'm
2 not sure. I know that I was on my way home from the Adriatic trying to
3 avoid logs. So it was right from the start of the armed rebellion that
4 the decisions granting pardon applied to, in terms of the individuals
5 taking part in the armed rebellion.
6 Q. As an illustration, let us look at the top part of this decision
7 relating to Petar Novogradic, which states that he been convicted to two
8 years in prison for the crime of preparing armed rebellion under
9 Article 236. Is that, in fact, the crime you referred to just a moment
11 A. Yes.
12 Q. For reference to Their Honours, the total of 104 persons were
13 covered by these applications; 35 of them were granted pardon for -- and
14 they participated in armed rebellion; and 23 had their applications
16 MR. MIKULICIC: [Interpretation] could I have a number for this
18 JUDGE ORIE: Mr. Hedaraly?
19 MR. HEDARALY: No objection.
20 JUDGE ORIE: Mr. Registrar.
21 THE REGISTRAR: Your Honours, this document becomes
22 Exhibit D1936. Thank you.
23 JUDGE ORIE: D1936 is admitted into evidence.
24 MR. MIKULICIC: [Interpretation] Thank you, Mr. President.
25 Let us call up document number 3D00291.
1 Q. That earlier decision granted partial pardon for the serving of
2 the sentence. This particular decision, dating from end of 1992 relating
3 to 24 persons, pardon is granted, or that's to say, immunity from
4 criminal prosecution.
5 Is this the way, Mr. Penic, in which pardon was granted both to
6 those who were already convicted and those who had yet to be prosecuted?
7 A. Yes, that's right. Pardons applied to persons who were yet to be
8 prosecuted and those who had already been convicted alike.
9 MR. MIKULICIC: [Interpretation] Could this number be -- could
10 this document be granted a number, Mr. President.
11 JUDGE ORIE: No objections from Mr. Hedaraly.
12 Mr. Registrar.
13 THE REGISTRAR: Your Honours, this document becomes
14 Exhibit D1937. Thank you.
15 JUDGE ORIE: D1937 is admitted into evidence.
16 MR. MIKULICIC: [Interpretation] As a reference to Their Honours,
17 24 persons were covered by this decision, all of them for the crime of
18 armed rebellion.
19 Can we call up 3D00294, please.
20 Q. Another decision granting pardon to persons who were already
21 convicted for the crime of armed rebellion or preparation for armed
22 rebellion. Again, dating from the end of 1992, covering 50 individuals.
23 Mr. Penic, as far as you remember, was this sort of decision
24 issued as part of the procedure you were involved in?
25 A. Yes.
1 MR. MIKULICIC: [Interpretation] Can I tender this document into
2 evidence, Mr. President.
3 MR. HEDARALY: Mr. President, as for the others, I have no
4 objection. I noticed there is an few number of these that Mr. Mikulicic
5 plans to tender. I have no objection to any of those lists of pardons.
6 I don't know if that -- if he wants to go through one by one with the
7 witness, but to the extent they are only lists of names that were granted
8 pardon, I have no objection to those. If Mr. Mikulicic wants to bar
9 table them, we will not object.
10 JUDGE ORIE: Mr. Mikulicic.
11 MR. MIKULICIC: I accept this suggestion of my learned colleague,
12 Your Honour, and I think that would be the efficient way to do this
14 JUDGE ORIE: Yes, then --
15 MR. MIKULICIC: I have more -- three other decisions from 1995 --
16 two from 1995 and one from 1996, above that one from 1992 as well.
17 JUDGE ORIE: Yes. So we will receive them as bar table
19 MR. MIKULICIC: That's correct, Your Honour.
20 JUDGE ORIE: Yes.
21 MR. MIKULICIC:
22 Q. [Interpretation] Mr. Penic, you've described for us the way in
23 which the pardoning procedure functioned. In addition to this procedure,
24 there was another procedure applied, pursuant to the Law on Pardons. I
25 will ask you to give us your comments.
1 MR. MIKULICIC: [Interpretation] But before that, can we call up
2 3D00287, please.
3 Q. While we're waiting for the document, can you tell us, Mr. Penic,
4 which legal area was regulated by the Law on Pardons from criminal
5 prosecution for the offences in -- committed in armed conflicts and in
6 Croatia -- in the war against Croatia? This was dated September 1992.
7 A. These laws on pardons, in relation to the crimes committed in the
8 war against Croatia, expressed the will on the part of the legislation
9 and the government on the Croatia - as an aside, just let me tell you
10 that this document -- this law had been widely covered in the press and
11 had been widely publicly debated -- the will to -- to express the will
12 for all those members of the Serb paramilitary units who had not been
13 involved in the commission the gravest of crimes, such as war crimes, to
14 have these crimes pardoned. I'm speaking for myself now, but I'm sure
15 that this was, at the time, a general assessment and view of the public
16 at large.
17 In other words, the individuals who were misled and who had been
18 manipulated, in a way, were to be shown in this way through a piece of
19 legislation that the government and the legislature wanted not to
20 sanction, such actions that followed from manipulative policies of
21 leaderships, unless these actions involved the commission of war crimes.
22 Q. Let us look at Article 1 of the law. As we can see, it relates
23 to the time-period from the 17th of August, 1990, up to the effective
24 date of the proclamation of the law. It is stated that criminal
25 prosecution shall not be undertake against the perpetrators of crimes in
1 the war against Croatia. And where criminal proceedings have already
2 been initiated, they would be suspended by the court ex officio. If a
3 person, subject to the amnesty stipulated in this law, has been held in
4 custody or in remand, the court shall order that the person be released.
5 And, as you said, this law also states that it does not relate to
6 the perpetrators of crimes for which the Republic of Croatia has its
7 obligations under international law.
8 MR. MIKULICIC: Your Honour, can this document be assigned a
9 number, please.
10 JUDGE ORIE: No objections from the Prosecution.
11 Mr. Registrar.
12 THE REGISTRAR: Your Honours, this document becomes
13 Exhibit D1938. Thank you.
14 JUDGE ORIE: And is admitted into evidence.
15 MR. MIKULICIC: [Interpretation] Mr. President, the same case
16 applies here as with pardons, and that's to say that we have four more
17 documents related to the Law on Amnesty where time-limits were changed
18 because the law had been amended on three occasions until 1996.
19 Shall we apply the same procedure, Mr. President, here as well
20 and tender these documents from a bar table, or else we can go through
21 them. It won't take more than ten minutes.
22 JUDGE ORIE: Yes. I'm a bit confused, but perhaps that's my lack
23 of understanding, that -- let me just check.
24 Yes, so you would say that time-limits for amnesty were changed
25 in subsequent legislation, yes.
1 MR. HEDARALY: I think for this topic I think there is only two
2 or three more. If we just go through briefly with the witness, just to
3 point out the dates. And we can just admit them all at once at the end.
4 But I think it may be usual for the Chamber to have the dates as we go
5 along, rather than bar table these particular ones.
6 MR. MIKULICIC: I agree with my learned colleague, Your Honour,
7 and that will not take us many time. At most --
8 JUDGE ORIE: Because, you say -- yes, let me ...
9 Yeah, please proceed.
10 MR. MIKULICIC: Thank you, Your Honour.
11 [Interpretation] Can the Registrar call up 3D00288, please.
12 Q. While we are waiting for the document, I wish to direct your
13 attention to the fact that the first Law on Amnesty covered the period
14 between 17th of August and the date of the proclamation of the law, which
15 was the month of September 1992.
16 What we're seeing now is the law that had amended the previous
17 law. In Article 1, the date of application is now the 10th of May, 1995;
18 that's in Article 1, as the ending date. So the entire period has been
19 covered starting from 1990 through to the 10th of May, 1995.
20 Mr. Penic, can you comment on the change -- on the methodology of
21 amending legislation?
22 A. Yes, I can. But if I can just, as an aside, say this. Since I
23 took part in the expert group working on this, it seemed to us very
24 important at the time that the legislation is passed which states that
25 the court would, ex officio, release someone who is held somewhere or in
1 the process of something. So the rationale behind this was that there
2 would be no discussion or debate, that there would be no random
3 assessment made, that the court would have an ex officio obligation to
4 apply the law.
5 On the other hand, how long the war would go on for was still an
6 unknown. It was an assessment based on the involvement of the
7 international community that the law -- that the war would end in 1992.
8 Unfortunately, that was not the case, and that's why the law mentioned --
9 was adopted in 1992.
10 Under the law making procedure, it was the easiest solution to
11 stipulate the length of its application in Article 1 and extend it to the
12 10th of May, 1995.
13 MR. MIKULICIC: [Interpretation] Your Honour, can this document be
14 assigned a number.
15 JUDGE ORIE: No objection from Mr. Hedaraly.
16 Mr. Registrar.
17 THE REGISTRAR: Your Honours, this document shall be assigned
18 Exhibit D1939. Thank you.
19 JUDGE ORIE: D1939 is admitted into evidence.
20 MR. MIKULICIC: [Interpretation] thank you, Mr. President.
21 Let us now look at 3D00289.
22 Q. This is another Law on Amnesty, which was passed on the
23 21st of May, 1996. Again, the time-limit of its application was
24 prolonged to the 1st of June, 1996, as stipulated in Article 1.
25 Can we have a brief comment of yours in relation to the provision
1 where the amnesty is stipulated for citizens who have a residence in the
2 temporarily occupied areas of Vukovar, Srijem, and Osijek-Baranja
3 counties. Why are these two counties specifically mentioned in Article 1
4 of the law?
5 A. It was a time-period of a peaceful reintegration of that area
6 into Croatia. The effort was to launch various initiatives aimed towards
7 bringing about a peaceful reintegration of Eastern Slavonia. And the
8 effort was successful, and it is believed that the law gave its
9 contribution to that end.
10 MR. MIKULICIC: [Interpretation] Can this document be assigned a
11 number, please.
12 JUDGE ORIE: Mr. Registrar.
13 THE REGISTRAR: Your Honours, this document shall be assigned
14 Exhibit D1940.
15 JUDGE ORIE: And in the absence of any objections, is admitted
16 into evidence.
17 MR. MIKULICIC:
18 Q. [Interpretation] The last document we have in this batch has
19 already been admitted as D680, and I would like to call it up. This is
20 the Law on General Amnesty, dated the 24th of September, 1996.
21 Article 1, again, provides for the period of its application;
22 namely, from the 17th of August, 1990, through to the
23 23rd of August, 1996.
24 Article 2 expressly provides for the way in which the law is to
25 be applied. In other words, the perpetrators would not be criminally
2 In para 2, where proceedings have been launched, they will be
4 And in para 3, if the person has been taken into custody, the
5 person would be released by order of a court.
6 In Article 3, the law expressly lays down the crimes which are
7 the subject of this law and those which are not.
8 Mr. Penic, can we have comments from you on this law.
9 A. I can certainly provide a comment, although I don't know what the
10 limits of my testimony are.
11 Q. Please go ahead but briefly.
12 A. I personally participated in the drafting of these laws, and I
13 was witness to much discussion that took place, since they were
14 proclaimed in the time of war and aggression against Croatia when my
15 family still lived in Vukovar and at the time when the Croatian public
16 was highly sensitive about the issue.
17 Despite all that, both the Croatian public and the parliament as
18 well as Croatian authorities and policy makers put such regulations in
19 place. It is my deep conviction that this presented an enormous step
20 forward to try, under the circumstances prevailing, to forget and
21 forgive, to the extent possible. It is not because I participated in the
22 drafting of these laws that I say that I believe them to be sound
23 legislation. I apologise if I have gone off on a tangent a bit.
24 MR. MIKULICIC: [Interpretation] I seek to tender this document.
25 Sorry, no, it's already in evidence; apologies.
1 JUDGE ORIE: Mr. Hedaraly.
2 MR. HEDARALY: I apologise for the interruption. If we could
3 just -- there's a, I think, translation issue with this document or at
4 least, of course, I can't be sure. But if we go to the previous page in
5 English, Article 1, and the reason I noticed it is we had a translation
6 from the Markac against before they realised it was in evidence. And at
7 Article 1, in the next-to-last line in the English, where it says:
8 "Armed rebellion or armed conflict or related to aggression,
9 armed rebellion, or armed conflicts."
10 I think there's also another version where that last -- that next
11 to last "or" was an "and." "And related to aggression, armed rebellion,
12 or armed conflicts in the Republic of Croatia." I know there have been
13 other witnesses that have touched on this topic. I don't think it's
14 crucial, but I just wanted to draw the Chamber's attention on the fact
15 that there is this uncertainty in two translations that we've received.
16 And I don't know if we should just send it to review or ask the witness
17 to clarify which one, if it's an "and" or an "or" that should be here.
18 MR. MIKULICIC: From Markac point -- from Markac Defence point,
19 the proper translation should be "and," not "or."
20 JUDGE ORIE: I'm just trying to understand here the difference
21 between the two. And we have two times the word "or," between armed
22 rebellion and armed conflicts. Would, in both cases --
23 MR. HEDARALY: No, Mr. President, it's the other one. There's
24 two groups.
25 JUDGE ORIE: Yes.
1 MR. HEDARALY: There's the first group with the ors, and then
2 there's the second group also with an or --
3 JUDGE ORIE: Yes, yes. And so it's the middle of the three ors
4 we find on the third line of Article 1.
5 MR. HEDARALY: That is correct.
6 JUDGE ORIE: That's the one. Okay, now I fully understand.
7 MR. MIKULICIC: Yes, Your Honour.
8 JUDGE ORIE: Let me just ...
9 MR. MIKULICIC: [Interpretation] Mr. President, perhaps we should
10 deal with any doubts concerning this issue and ask the witness to
11 interpret para 1 of Article 1, since he took part in the drafting of this
13 Q. Mr. Penic, Article 1 states in Croatian:
14 "This law shall grant general amnesty from criminal prosecution
15 and proceedings against perpetrators of criminal acts committed during
16 aggression, armed rebellion, or armed conflicts and related to
17 aggression, armed rebellion, or armed conflict in the
18 Republic of Croatia?"
19 In the Croatian version, we see two small i's, at least in the
20 version I have, which, obviously --
21 A. An armed rebellion represents an act of rallying and sporting
22 weapons, which is one act under the law. And actually firing the weapons
23 is another under the law. In any case, we wanted to include both in the
24 amnesty under this law.
25 Q. If I understand correctly, then, the two i's in the Croatian
1 version should actually be "and." So cumulatively.
2 It is obvious that in the original text of the law there was a
3 typographical error which caused the confusion.
4 JUDGE ORIE: I'm a bit lost, I'm afraid.
5 MR. MIKULICIC: Mm-hm. [Interpretation] Mr. President, Article 1
6 of the Law on General Amnesty, the second line.
7 JUDGE ORIE: Yes.
8 MR. MIKULICIC: [Interpretation] After the Croatian word
9 "oruzanum pobunam [phoen]," towards the end of the line you can see two
10 small i's.
11 JUDGE ORIE: Yes.
12 MR. MIKULICIC: [Interpretation] There is one too many.
13 JUDGE ORIE: Yes. Now I understand. The one question remaining
14 with the "or" and the "and" is, finally you say it's both, crimes
15 committed during and crimes committed in relation. Now, is that a --
16 that would mean that if I do steal a cow from my neighbour during
17 aggression, that that would fall within the terms of the amnesty as well?
18 THE WITNESS: [Interpretation] The most classical type of crime
19 known to all of us is something that was not included. Hence, my answer
20 is no.
21 JUDGE ORIE: Yes. So it should be "during and in relation to"?
22 THE WITNESS: [Interpretation] Yes.
23 JUDGE ORIE: Now, I do not know what ii, whether that's -- first
24 of all, it should be i. And then I do not know whether it's
25 "and" or "or" in the --
1 MR. MIKULICIC: It should be "i," and it's "and."
2 JUDGE ORIE: Yes. Now it is perfectly clear to me.
3 Please proceed.
4 Could you then, the translation, as we have it on our screen now,
5 could that be -- this is the translation prepared by -- because this one
6 says "or."
7 MR. MIKULICIC: Yes, and that is wrong. Should be -- instead of
8 "or," should be "and."
9 JUDGE ORIE: Yes. Now who is responsible for this translation,
10 so -- because we can't change a translation which is prepared by CLSS
11 without having them review it.
12 MR. MISETIC: Mr. President.
13 MR. HEDARALY: It seems that it's a -- it's an OTP translation,
14 so we will take care of having revised and corrected it and it sent
16 JUDGE ORIE: Yes.
17 Mr. Misetic.
18 MR. MISETIC: Before we get to that, if we could consult during
19 the break, because I'm not sure that we agree with the position that it
20 should be an and. I have looked at the original now in the Croatian --
21 official Croatian legal database and it -- unfortunately, in the
22 original, uses the ii.
23 JUDGE ORIE: And I have got no idea whether ii stands for
24 something else than i.
25 MR. MISETIC: Well, here's the problem: In Croatian, if it's
1 simply an extra i was typed, then it means "and;" it means just i. If
2 it's that the L between the two i's was inadvertently dropped, then it
3 would be ili which would be or.
4 JUDGE ORIE: Which we find elsewhere in this line. We find ili
5 once, and then you would say that -- if the parties could try to agree.
6 And once I'm retired, I will start studying linguistics somewhere. Let's
7 see, but is there any chance that anyone interprets -- if it would be a
8 real "or," then my example, just given, stealing a cow of your neighbour,
9 would fall within the scope of the amnesty.
10 Is that the position of the Gotovina Defence.
11 MR. MISETIC: Mr. President, I must confess, I was looking for
12 the law, so I wasn't following the exact question.
13 JUDGE ORIE: Yes. I said before if -- is it the position -- if
14 the Gotovina Defence leaves it open that it is still "or," the middle of
15 the three, before the word "related to," whether it's "or related to,"
16 would it be the position of the Gotovina Defence that -- let me just
17 check now.
18 Yes, if that would still -- well, if there would still be a
19 possibility that the word in dispute would be "or," that would mean that
20 both crimes during armed conflict, aggression, et cetera, and crimes
21 committed in relation to, they all would be covered by the amnesty laws.
22 Which would mean that a cow being stolen during armed conflict from your
23 neighbour would fall within the scope of this amnesty as well.
24 MR. MISETIC: That is our position, Mr. President.
25 JUDGE ORIE: That's your position.
1 MR. MISETIC: Meaning either in the aggression or in an armed
2 conflict. And if you wish, I can explain in detail, but I don't think it
3 would be appropriate at this moment -- [Overlapping speakers] ...
4 JUDGE ORIE: I don't think at this moment. But then, at least,
5 the position of -- so better commit a crime during aggression if you have
6 any hopes for amnesty. This is not related to Croatia but in general.
7 MR. MISETIC: Well, I can give you the full background,
8 Mr. President. This has already been at length discussed with Mrs. Rehn
9 as to why it would have covered both.
10 JUDGE ORIE: Yes, I must admit that I have no clear recollection
11 at this moment. But I will immediately check that.
12 MR. HEDARALY: And it has been noticed by Mr. Bajic as well, on
13 the record. While we're putting sources of evidence on the record, I
14 want to do that as well.
15 JUDGE ORIE: Then let's please proceed at this moment. We've
16 spent enough time on it.
17 MR. MIKULICIC: Yes, Your Honour, just for your reference, it
18 could be of help, paragraph 2 of the Article 3 of that law.
19 JUDGE ORIE: Yes, I will have a look at it, and I will check both
20 the sources just mentioned by the parties.
21 Please proceed.
22 MR. MIKULICIC: Thank you, Your Honour.
23 Q. [Interpretation] Mr. Penic, the last topic, in your statement,
24 you say that, as an employee of the Ministry of Justice, you appeared on
25 TV Vinkovci which is a Croatian TV station but that you also travelled to
1 Belgrade to acquaint those interested with the contents of the
2 Law on General Amnesty.
3 Can you tell us something more about this activity of yours and
4 what it was motivated by?
5 A. I was at the collegium of the Ministry of Justice, given that
6 this fell within the competence of my administration, to interpret the
7 law and explain the Law on General Amnesty to them and to everyone else
8 who wanted to know about it. I visited the Danubian region on several
9 occasions, and I appeared in two TV broadcasts of a Croatian TV station,
10 although they covered a wide area even outside Croatian territory. I was
11 tasked to explain in lay terms what the provisions of this law entailed,
12 and I was open to any questions by the viewers.
13 One broadcast was interesting in particular. I recall that there
14 were no provocations during the broadcast, which surprised me. And the
15 interest that was shown was rather high. It is obvious that even those
16 who could recognise themselves as falling under the provisions of that
17 this law had a justified and bona fide interest in seeing how they could
18 be included in its application.
19 I was also part of a Croatian delegation which visited Belgrade
20 on two occasions. Two of the representatives of the FRY who were present
21 there from their ministry of foreign affairs as well as in the presence
22 of our Ambassador to the FRY and in the presentation of their
23 Ministry of Justice representatives as well as the representatives of an
24 association founded by Mr. Savo Strbac, a former judge who had fled to
25 the FRY.
1 We were there to explain the provisions of this law in detail and
2 provide interpretations. However, no matter how hard we tried, no matter
3 how many times we tried to explain why this law was enacted, trying to
4 say that anyone who had not committed a crime can return to Croatia,
5 still, it was not taken up in practice. I don't know whether this was
6 intentional or unintentional. But it seemed to me that they persistently
7 refused to understand.
8 In some radio broadcast in Croatia, I also explained this topic
9 and provided interpretations of this law on behalf of the Ministry of
10 Justice and the minister of the justice as well as the Republic of
11 Croatia in general and its authorities, trying to say that all those who
12 had not committed war crimes and certain most serious crimes can freely
13 come back and would receive amnesty for anything they had done while
14 being influenced by the policies at the time. Every time they were by
15 the logs or doing anything of the sort. However, I'm not sure we
16 received the exact reaction we were hoping for.
17 This is what I can recall.
18 Q. Mr. Penic, I thank you for your answers.
19 MR. MIKULICIC: [Interpretation] Your Honour, I have no further
21 THE WITNESS: [Interpretation] Thank you.
22 JUDGE ORIE: Thank you, Mr. Mikulicic.
23 Has any arrangement been made who goes first?
24 MR. KAY: No problem, Your Honour. I'll go next, with the
25 Court's leave, if that is acceptable.
1 JUDGE ORIE: Yes. Please do so.
2 You will now be cross-examined by Mr. Kay, Mr. Penic. Mr. Kay is
3 counsel for Mr. Cermak.
4 Cross-examination by Mr. Kay:
5 Q. Mr. Penic, after Operation Storm and the liberation of Knin, were
6 you aware of an agreement signed between the Croatian government, on one
7 side, and the United Nations, through Mr. Akashi, on the other side?
8 It's often called the Akashi-Sarinic Agreement.
9 A. Yes, I have heard of that agreement.
10 Q. Within the Ministry of Justice, were you ever provided a copy of
11 that agreement to consider its content?
12 A. No.
13 Q. The minister of justice at that time was a Mr. Separovic; is that
15 A. Yes, it is.
16 Q. And within your ministry, was he the government official who was
17 the person you reported to?
18 A. I was directly answerable to the minister of justice.
19 Q. Were you aware if Mr. Separovic had been given or provided with
20 the Akashi-Sarinic Agreement?
21 A. Whether he was aware of it or not is something I don't know.
22 Q. Did you have occasion to discuss one of the terms of the
23 Akashi-Sarinic Agreement with Mr. Separovic concerning war criminals
24 suspected of being within the UNCRO camp in Knin?
25 A. Yes. I discussed that with Mr. Separovic.
1 Q. And you've been telling us this morning about your role, in
2 relation to alleged war criminals within the Croatian justice system.
3 Was it for that reason that this matter was discussed with you concerning
4 alleged war criminals in the UN camp?
5 A. Any discussions with me about the document itself and the way it
6 was drafted and the reasons behind it is something that did not take
7 place. Minister Separovic did, however, acquaint me in detail what the
8 document contained and what was decided for me to do in the course of its
10 Q. I now want to look at that in a little bit more detail.
11 How soon after the liberation of Knin did Mr. Separovic discuss
12 with you the issue of the suspected war criminals in the UNCRO camp?
13 A. In the period between 48 and 72 hours, after that, I believe.
14 Q. And perhaps you can describe what happened. How did he discuss
15 this with you; and what did he say to you?
16 A. During Operation Storm, we were all called back to the
17 Ministry of Justice to our offices. Those of us were male fell under the
18 so-called work obligation, and we were there at the disposal.
19 Minister Separovic summoned us to his office, and he told us that
20 an agreement was concluded between Mr. Sarinic and Mr. Akashi, pursuant
21 to which the Croatian side, as a precondition for about 1.000 refugees
22 who were in the UN camp in Knin, to have them released, wanted to retain
23 some 70 persons, I believe. It was believed that they were war crimes
24 perpetrators. Under the agreement, Croatia was entitled to keep those
25 people and put them in custody; whereas, all the others would be
2 Minister Separovic told me that he had documents which came from
3 the relevant State Prosecutor's offices and courts, amounting to the
4 information which sustained reasonable doubts of those persons having
5 committed war crimes. He gave me those documents, which I reviewed. It
6 was my task to take those court files and documents to the UN camp in
7 Knin and to serve those documents on those who were suspected of having
8 committed war crimes. They had to sign off for their receipt, putting in
9 place the possibility of meeting the precondition for the implication of
10 the Akashi-Sarinic Agreement. Those suspects were supposed to be kept in
11 custody, while others were supposed to be released, to go their different
13 Q. I just want to look at one aspect of the answer you gave there,
14 and it was towards the end of your statement where -- I will read out
15 from the transcript:
16 "Minister Separovic told me that he had documents which came from
17 the relevant State Prosecutor's offices and courts, amounting to the
18 information which sustained reasonable doubts of those persons having
19 committed war crimes."
20 It is the phrase "sustained reasonable doubts" that I wanted you
21 to consider, as to whether you meant that, or what was your in your mind
22 when you used that phrase "sustaining reasonable doubt."
23 And I put that to you as a lawyer, as something you should
25 A. Yes. Reasons to suspect was a category which, under the then
1 Croatian law, as is now the case, which provided a possibility for
2 conducting criminal investigative measures and investigations against
3 certain persons. In order for a prosecutor to decide such -- to launch
4 such an investigation, the relevant prosecutor needed to have documents
5 which would provide for reasonable grounds of suspecting those people of
6 having committed that. These were court decisions on launching
7 investigations on keeping persons in custody or issuing warrant -- arrest
9 In any case, such a category was necessary, because it -- such
10 material had to be beyond any doubt so as to be able to use as grounds to
11 initiate any type of criminal procedure.
12 Q. I want -- now want to look at the files you were given by
13 Minister Separovic and the type of documentation that was in those files
14 that you reviewed.
15 Perhaps you could describe that to the Court, the kind of
16 documents you were looking at.
17 A. These were documents originating from several courts located in
18 the war areas, primarily Sibenik, Split, and Zadar. These were decisions
19 passed down by the investigating judges of these courts and decisions,
20 which I saw copies of only, citing the names of individuals and the
21 crimes against them, their particulars. They contained the description,
22 the factual description, of actus reus, the action committed, the legal
23 qualification of the act, and the supporting evidence underpinning the
24 request for investigation and the decision to launch an investigation.
25 These were witness statements wherever witnesses were alive to tell the
1 story. They contained crime scene investigation reports, interviews with
2 either eye-witnesses or individuals who had knowledge or information of
4 At any rate, the document had to be of a certain legal format.
5 It had to meet all the legal elements and prerequisites in order for it
6 to be the basis for prosecution.
7 Q. When you give a long answer, I'm allowing time for the
8 translation to take place, Mr. Penic, so don't worry if I'm --
9 A. Yes, I understand.
10 Q. [Previous translation continues] ... silent.
11 Now, again, the type of crimes that were within those files
12 Minister Separovic gave you. Can you recollect what sort of crimes were
13 alleged by the suspects?
14 A. Rape; driving out of civilians; torching their homes. These were
15 the categories of offences.
16 Q. Now, moving on from there, you were given the instruction to go
17 to Knin with the files. So what did you do?
18 A. I was taken there by a professional driver. The practical
19 arrangement was such that I was supposed to report to Mr. Cermak in Knin.
20 He was supposed to receive me there, to find lodging for me, and to take
21 me to the base so that I could formally turn over the documentation.
22 I set out for Knin. General Cermak received me there in the
23 company of another associate of his. I was put up in the house where he
24 himself stayed. He took me in his car; I think it was a military
25 vehicle, and accompanied me to the gate, to the UNCRO base in Knin. It
1 was the UNCRO's representatives who then took me into the camp or into
2 the base, into a room there, where I told them what my task was. I
3 presented them with a copy of all these documents. Based on what I was
4 told, they knew who these particular individuals were. And so I asked
5 them to bring these individuals over to me so I could carry out the task
6 that I was sent from Zagreb for.
7 At that point there was commotion, some sort of rebellion or
8 protest from these individuals. My powers were somewhat limited. I was
9 not there as part of a member of the gendarmerie or as a policeman nor
10 did you have powers to issue anyone with orders. I took a retreating
11 stance, so to speak. I asked them once more to heed me. UNCRO
12 representatives or UNPROFOR representatives, whatever they were called,
13 were told that this was my task which I had to perform. I told them that
14 I was not aware of what the status of all these individuals at the base
15 was and that I didn't have any other instructions.
16 I am coming back to what you initially asked me about, if I may,
17 because I, indeed, did not see the Separovic-Akashi Agreement; I wasn't
18 involved in it. My role was to implement it in that particular element,
19 where individuals suspected of having committed war crimes were supposed
20 to be retained.
21 By happenstance, I didn't manage to hand over the documentation.
22 I left in the company of UNCRO or UNPROFOR representatives who escorted
23 me out of the camp. Mr. Cermak was waiting for me there. He took me
24 back to his house where I relayed to him what had happened. He contacted
25 Zagreb. And, in fact, I returned to Zagreb without having done what I
1 was supposed to do there to begin with.
2 Once I told Cermak what had happened, he contacted Zagreb, and
3 then, as I returned to Zagreb on the following day, I was told again by
4 the minister of justice that I should venture to go to Knin once more and
5 that I would be accompanied by Vesna Skare Ozbolt as a representative of
6 the office of the President of the state and as a representative of
7 Mr. Separovic himself, as a person who would be on a higher position than
8 myself, as a politician, who was Sarinic's right hand at the time.
9 She returned to Knin with me, and she helped, in fact, with her
10 resolute and decided stance and with her excellent command of English
11 through conversation also with UNPROFOR representatives there to persuade
12 the individuals involved to receive the documentation we were supposed to
13 turn over to them. However, there were some 10 to 20 of them who
14 persisted in their refusal to be served the documentation. I made a
15 record of this, the names of the individuals and the date, stating that
16 the individual concerned was officially told what the charges against him
17 or her were and that in the -- in my presence, the presence of
18 Madam Skare Ozbolt and the representatives of the international
19 community, the individual was duly informed of it, whereby it was
20 considered that the individual had been informed of the charges and of
21 his rights and obligations.
22 In a nutshell, that's what happened in relation to the hand-over
23 of documentation, the serving of documentation.
24 Q. Thank you. That was -- thank you. That was a very full answer.
25 And in relation to your dealings with this matter, did Mr. Cermak
1 have any authority over you at all? Was he, in any way, your superior in
2 relation to what you were doing in your attempts to serve the documents?
3 A. Mr. Cermak had absolutely nothing to do with it whatsoever. He
4 was my host, who was, evidently, tasked with receiving me, taking care of
5 my security and safety, finding accommodation with me, and accompanying
6 me to the base. He did not even go into the compound with me.
7 Q. I want to look at a document with you now, which is not yet a
8 Court exhibit. It's 2D15-0018. It's a document dated the
9 19th of September, 1995, from the ministry of law, or justice, and it's a
10 document signed by you and also sent to Minister Separovic. But it's
11 written to Mr. Sarinic of the Office of the President of the Republic.
12 I just want you to look at this document. And if you could read
13 the first page. First of all, if you could tell me whether you've seen
14 this document in the last 15 years or so before.
15 A. Could I see the end of the document as well, please?
16 Q. Yes.
17 MR. KAY: Please turn to page 2. Page 2 in the English as well.
18 THE WITNESS: [Interpretation] No, that's not the end. That's a
19 list of a sort. In English, we do have the end, but not in Croatian.
20 MR. KAY: Yes. It's page 2 of the Croatian, if we may have that,
21 which is the end of the letter.
22 THE WITNESS: [Interpretation] That's my signature, yes.
23 MR. KAY:
24 Q. Yes, thank you. And if you could just read through the second
1 A. I don't recall the document, the text as such.
2 What I do remember, though, is that once I've finished my
3 dealings there, as I described them, I did write a report, and that must
4 be it. I'm not challenging its authenticity. I didn't read it since,
5 but, obviously, it confirms the better part of what I told you earlier
6 on, as you can see. To my surprise, I do not recall Mr. Slobodan Lang
7 being there, although he is a good friend of mine. That must be because
8 of the lapse of time.
9 From this document of mine, it follows that I acted on
10 Mr. Sarinic's instructions conveyed to me by Minister Separovic, because,
11 as you can see, at the end of the document, I am informing him of what I
12 had done and that I had written a report on this issue to Mr. Sarinic.
13 Now, what the follow-up was on my report and what the subsequent
14 fate of these individuals was and how many of them had been detained and
15 how many had been released, how many are still serving their sentences in
16 Croatian prisons today, I don't know. What I do know is that, following
17 this operation, I was charged with visiting Lepoglava - this is the
18 biggest Croatian prison - where I saw, again, a number of these
19 individuals. I remembered their features. And I spoke to some of them.
20 You have to know that the Ministry of Justice insisted that the
21 treatment according them was due and proper and transparent, that
22 representatives of the international community should be allowed access
23 to them, to see how they were treated and what -- what sort of conditions
24 they were in, in prisons, and to hear any complaints they might have.
25 What I know privately is that several of them are still serving their
1 sentences in Lepoglava today. What their fate will be, I don't know.
2 Another comment that I can give you, in relation to this letter
3 is the fact that enclosed to this letter was a list of individuals,
4 which, should, the logic dictates, be consistent and specify the names of
5 each and every suspect that I was charged with serving papers on. So I
6 suppose that you will find such an enclosure here. You say it says:
7 "Enclosure, list of individuals."
8 Q. Just before we go to that, if you could confirm that is your
9 signature at the foot of the page there, Mr. Penic.
10 A. Yes, it is my signature.
11 Q. Thank you.
12 MR. KAY: And if we can turn to the next page of the document
13 where there is an heading:
14 "List of suspects processed from the group of persons located in
15 the UNCRO camp."
16 And we see some names on the page. And is that the list that you
17 were referring to?
18 A. I don't know if it is or isn't, but it should be. That's what
19 the logic dictates. Though, as I told you, I don't recall exactly the
20 contents of the document. What I do remember is that I dictated just
21 such a list to my secretary.
22 Q. And just to point out to you, this document originates from the
23 state archive in Zagreb, so it's a document that has been obtained from
24 the official channels, as we can see by the stamp.
25 MR. KAY: Your Honour, there is a list of names stretching over
1 several pages. I don't propose to go through it one by one with the
2 witness, with the Court's leave, as I don't see any purpose in that. And
3 the witness has described the document, and Your Honours can view the
4 full terms of it to see that it corroborates what the witness has
6 JUDGE ORIE: I hear of no objections, and the Chamber is not
7 insisting on going through the document person by person, Mr. Kay. So,
8 therefore, you may proceed as you suggested.
9 MR. KAY: Thank you, Your Honour. And I can tell the Court,
10 again, because it is helpful, I believe. That it is signed at the end of
11 the list of suspects by Mr. Penic himself.
12 Also, with this document, right at the end of it, if we go to the
13 very last page now, page 11 of the document.
14 Q. Where we can see your signature, Mr. Penic. Do you confirm that?
15 A. Yes, that's my signature.
16 Q. The purpose of going here is to go to the page before this now,
17 where we'll see the heading:
18 "Additional list of the suspects in Knin UNCRO camp."
19 Because the evidence shows that an additional six names were --
20 were added to the list. We can see this now. And it's about this that I
21 was going to ask you: Can you recollect that the original list that was
22 formulated then had an additional list added to it of six further
23 suspects. Can you recollect that in the chain of events?
24 A. No.
25 Q. Well, the document speaks for itself, and I won't go any further
1 into that.
2 MR. KAY: Your Honour, may this document be made an exhibit,
4 MR. HEDARALY: No objection.
5 JUDGE ORIE: Mr. Registrar, let me ...
6 THE REGISTRAR: Your Honours, this document shall be assigned
7 Exhibit D1941. Thank you.
8 JUDGE ORIE: D1941 is admitted into evidence.
9 MR. KAY: Your Honour, to assist the Court, those members of my
10 team have been looking at this for me, have looked at those names in the
11 list that we've seen signed by Mr. Penic, provided them into a schedule,
12 and then been through various court exhibits of this trial, matching the
13 names with other documents, and providing, not with the full number of
14 them, but, I believe, 22 -- 28 of the number, linked documents, and we
15 will be filing that as a bar table document for the Court to consider.
16 JUDGE ORIE: Yes. Mr. Kay, may I take it that that's not really
17 evidence being presented but, rather, a document which would assist the
18 Chamber in linking the information in this document with what we find in
19 evidence elsewhere but in itself, then, is not to be considered as
20 evidence, but, rather, an aide-memoire for the Court, and a document
21 which gives some assistance to the parties -- the other parties and to
22 the Court. Is that how we should understand that?
23 MR. KAY: We've also traced the the decisions to open
24 investigations in the files that have been produced to the Court from the
25 Prosecution 65 ter list, and that has been incorporated. So we have this
1 helpful schedule, I believe, but within that are the Court files that go
2 to these particular individuals. And it's those documents that will
3 become, with the Court's leave, first-time exhibits but linked to
4 everything as we like to do it for the Court to try and show the
5 connections there.
6 JUDGE ORIE: So if I understand you well, it's a mixture, to some
7 extent. It just gives the linkages and will assist the Court in that
9 MR. KAY: Yeah.
10 JUDGE ORIE: But at the same time, it also produces some material
11 which is not in evidence yet.
12 MR. KAY: Yes.
13 JUDGE ORIE: And to that extent, therefore, it is new evidence as
14 well. I find it important to make that distinction between assisting the
15 Court in finding its way through what is already in evidence is something
16 different from combining such an effort with introducing what is, for
17 this Court, new in evidence.
18 MR. KAY: Yes.
19 JUDGE ORIE:
20 MR. KAY: We will be serving that directly now that that work has
21 been -- that task has been completed.
22 JUDGE ORIE: Yes. Has that been reviewed by the other parties?
23 MR. KAY: Not yet.
24 MR. HEDARALY: We just received it with the cross-examination
25 documents, so literally less than an hour ago.
1 MR. KAY: Yeah.
2 JUDGE ORIE: Yes. Especially if there is new evidence involved,
3 I'd like to give an opportunity to the other parties to consider whether
4 there is any objection against what is produced here, because it goes
5 beyond just assisting the Court in finding its way through what is
6 already in evidence.
7 MR. KAY: Yes, Your Honour. We have no complaint. I was just
8 linking it all up for the record, to assist the Court.
9 JUDGE ORIE: Yes.
10 MR. KAY: And I even have, helpfully prepared for me, hard-copies
11 here to distribute this morning, which I hope will make the task easier
12 for all concerned.
13 JUDGE ORIE: Yes.
14 MR. KAY: Your Honour, if I may just check whether I have any
15 more questions, I believe I have finished --
16 JUDGE ORIE: Yes.
17 MR. KAY: No, Your Honour, in those circumstances, I have
18 finished my cross-examination.
19 JUDGE ORIE: Thank you, Mr. Kay.
20 Has your new material been uploaded in e-court, Mr. Kay, or not
22 MR. KAY: Yes, it's all been stuff we've uncovered in the 65 ters
23 already, Your Honour.
24 JUDGE ORIE: Yes.
25 MR. KAY: Everyone's had the information. Not us -- it's, in
1 fact, Prosecution 65 ter material.
2 JUDGE ORIE: Yes, I do understand that. But you apparently got
3 it together in a submission you want to make, the submission you want to
4 file. Is that submission already uploaded in e-court? Because it --
5 MR. KAY: Not -- [Overlapping speakers] ...
6 JUDGE ORIE: [Overlapping speakers] ... it contains and refers to
7 new evidence. So to that extent it should be --
8 MR. KAY: It won't be a problem, Your Honour, any of this.
9 JUDGE ORIE: Won't be a problem. Then we'll wait, for the time
10 being, with assigning any numbers. If there is any hard copy available
11 to the Chamber so that we can at least have a look at how you treated
12 this material and which way you organised it, then we'll be better able
13 to give further guidance to you and to the other parties how to proceed
14 with this material after the break.
15 MR. HEDARALY: Thank you. And just for the record, some of these
16 are not on the Prosecution 65 ter list so they make take a little bit
17 more time to review. I haven't seen them yet. But as soon as I do,
18 we'll try to get back to the Cermak Defence as soon as possible.
19 JUDGE ORIE: Mr. Kay provided us all with some homework.
20 Mr. Mikulicic.
21 MR. MIKULICIC: Your Honour, if I may, only two minutes.
22 Your Honour will remember that I have three documents to be
23 entered as bar table documents. And since I have no objections from my
24 learned friend from the OTP, could I simply just point out on the record
25 three documents and ask for their admission.
1 JUDGE ORIE: Yes. And these are all documents in relation to
2 pardon from what I understand.
3 MR. MIKULICIC: Yes. Yes, Your Honour, that's right.
4 JUDGE ORIE: So there should be no disagreement about what the
5 relevance of it is. And I take it that being aware of what these
6 documents are, that you, Mr. Hedaraly, you have no wish to further point
7 at specific elements in it.
8 Under those circumstances, we'll deviate from our usual
9 requirements for bar table filings and decide on admission of these
11 If you read one by one the 65 ter numbers, then numbers will be
12 assigned and a decision will be taken, Mr. Mikulicic.
13 MR. MIKULICIC: Thank you, Your Honour.
14 The first one will be 3D00293.
15 JUDGE ORIE: Mr. Registrar.
16 THE REGISTRAR: Your Honours, this document shall be assigned
17 Exhibit D1942. Thank you.
18 JUDGE ORIE: And is admitted into evidence.
19 MR. MIKULICIC: Thank you, Your Honour.
20 JUDGE ORIE: D1942. The next one.
21 MR. MIKULICIC: The next one will be 294, so 3D00294.
22 THE REGISTRAR: Your Honours, this document shall be assigned
23 Exhibit D1943. Thank you.
24 JUDGE ORIE: D1943 is admitted into evidence.
25 Next one, Mr. Mikulicic.
1 MR. MIKULICIC: And the last one will be 3D00296.
2 THE REGISTRAR: Your Honours, this document shall be assigned
3 Exhibit D1944. Thank you.
4 JUDGE ORIE: D1944 is admitted into evidence.
5 MR. MIKULICIC: Thank you, Your Honour.
6 JUDGE ORIE: We'll have a break, and we'll resume at ten minutes
7 to 1.00.
8 --- Recess taken at 12.33 p.m.
9 --- On resuming at 12.59 p.m.
10 JUDGE ORIE: Mr. Mikulicic.
11 MR. MIKULICIC: Your Honour, we managed to find out the Laniste
12 region, and we could produce it via Sanction on the screen so that you
13 can see. It's a, let's say, two or three kilometres south from
14 Kulen Vakuf.
15 JUDGE ORIE: Yes.
16 MR. MIKULICIC: And now we will see it on the screen.
17 JUDGE ORIE: Yes. It's clear. That now the line described in
18 the document is -- is clear now.
19 Mr. Penic, don't worry about the Laniste woods. It is -- it's
20 relevant for us but not of direct relevance for you. There is no court
21 in Laniste woods, was there.
22 THE WITNESS: Okay thanks.
23 MR. MIKULICIC: But I have to admit, Your Honour, that the honour
24 goes to Ms. Prashanthi. She found it.
25 JUDGE ORIE: She found it. Okay. That's on the record. And in
1 her absence, she's praised for it. Let's proceed.
2 Mr. Misetic are you ready to --
3 THE WITNESS: It's okay now.
4 JUDGE ORIE: -- cross-examined Mr. Penic?
5 MR. MISETIC: Yes, Mr. President.
6 JUDGE ORIE: Mr. Penic, you will now be cross-examined by
7 Mr. Misetic. Mr. Misetic is counsel for Mr. Gotovina.
8 Please proceed.
9 Cross-examination by Mr. Misetic:
10 Q. Good afternoon, Mr. Penic. I would like to start off on the
11 issue we dealt with this morning on the Law on General Amnesty and the
12 and/or issue.
13 MR. MISETIC: So if we could call up D680, please.
14 Q. Now, Mr. Penic, you will recall that we were talking about
15 Article 1 in the first paragraph, and it talks about the amnesty concerns
16 criminal acts committed during aggression, armed conflict, or -- sorry.
17 During aggression, armed rebellion, or armed conflicts or related to
18 aggression, armed rebellion ... and then there's a question as to whether
19 it should say "and" or "or armed conflicts in the Republic of Croatia."
20 You will see in the original, as we discussed this morning, there
21 appears to be a typographical error, so it is not clear whether in
22 Croatian it says i, or whether it should say ili.
23 MR. MISETIC: And if we could now turn to Article 3, which is
24 page 2 in the English, subparagraph 2 -- I'm sorry, page 3 in the
1 MR. HEDARALY: I'm sorry. I didn't think that was the
2 disagreement. I thought the disagreement was the word between the first
3 three armed rebellion aggression and armed conflict and the second time
4 that those words are mentioned. I don't -- at least, I didn't take it
5 that the last -- between the armed rebellion and armed conflict, I think
6 we agreed that that should have been an "or." At least that's how I
7 understood the agreement. I thought it was on that Article, not on that
9 JUDGE ORIE: We found in the English version three times the word
10 or on one line. In dispute was the middle one.
11 MR. MISETIC: Mr. Registrar, if we could have page 1 of both on
12 the screen, please.
13 JUDGE ORIE: Yes, it's confusing.
14 Mr. Misetic, I was focussing on, if we read the English text,
15 third line, reads:
16 "... rebellion or armed conflicts, or related to ..."
17 And it that's or, that last one, before the words "related to,"
18 which seems to be the or which was contested and understood to be and.
19 Now as we see as the semi-last word on that line in English,
20 again the word or, but that's not the one, neither is there -- I mean,
21 the or, the two times or before armed seems to be not contested; whereas
22 the or before the word related that is contested. And the Prosecution
23 suggests that that should read "and."
24 MR. HEDARALY: And I also note for the record when Mr. Mikulicic
25 read it for the witness as a question, the -- the interpretation that
1 came from the booth was an and. I know that is not the determinative or
2 final but also -- that's also on the record.
3 JUDGE ORIE: Okay. Now we know, at least, what the Prosecution
4 argues. Mr. Misetic, please keep this in mind when putting any further
5 questions to the witness.
6 MR. MISETIC: Okay. That's fine. And if that's the issue, then
7 I don't have a problem with it, so I'll move on.
8 JUDGE ORIE: Then there's no issue.
9 MR. MISETIC: Yes, correct.
10 JUDGE ORIE: Okay. Then this matter, having been settled, the
11 Prosecution will take care of uploading a new translation, especially in
12 relation to Article 1 of this law.
13 Mr. Penic, we resolved the matter, even without your assistance,
15 Please proceed.
16 MR. MISETIC: Thank you, Mr. President.
17 Mr. Registrar, if we could now have Exhibit D1940, please.
18 Q. Now --
19 MR. MISETIC: I'm sorry. I apologise, Mr. Registrar. I meant
20 D1809, please.
21 Q. Mr. Penic, this is the appeal that President Tudjman issued to
22 the Serbs in Sectors North and South on the 4th of August, 1995, which
23 was broadcast repeatedly on Croatian TV and radio.
24 MR. MISETIC: If we could go to page 2 of this document, please.
25 Q. And if you look at the second paragraph in both documents, both
1 versions, you will see that President Tudjman:
2 "... invited the members of Serbian paramilitary forces who are
3 voluntarily or forcibly mobilised in the Serbian paramilitary forces to
4 surrender their weapons to Croatian authority, with the guarantee they
5 will be given amnesty according to valid Croatian laws."
6 Now, were you, as the assistant minister of justice, aware that
7 on the first day of Operation Storm President Tudjman had, in fact,
8 promised rebel -- members of the Serb paramilitaries that they, in fact,
9 would be guaranteed amnesty?
10 A. Yes, absolutely.
11 Q. At the time, meaning on the 4th of August -- or let me rephrase
13 Following this appeal, do you recall when the first time was that
14 you heard about preparations to implement an amnesty for members of Serb
16 A. If I understand you well, the preparations to implement an
17 amnesty for members of Serb paramilitaries is something that has existed
18 for a while. It had existed even prior to this period. It was a
19 continuing process. Even without this appeal, the process was under way,
20 and it was ongoing even during the military operations. I recall this
21 very well. One could hear it round the clock on TV, in radio, for at
22 least 48 hours. Those who wanted to listen and understand could do so
24 MR. MISETIC: Mr. Registrar, if we could please see Exhibit D685,
1 Q. Mr. Penic, this is a European Community Monitoring Mission report
2 from 10th of August, and -- I don't know if we have a Croatian version of
3 this. But in the third paragraph there was a note that as of
4 10 August there was a meeting with an unidentified person on behalf of
5 the Croatian government and that person:
6 "Added that detained Krajina soldiers who have not committed war
7 crimes will be amnestied within one month."
8 Do you recall conversations within the first week of
9 Operation Storm about implementing an amnesty for detained ARSK soldiers?
10 A. Excuse me, do we know where this document saw the light of day?
11 Q. It is a report by the European Community Monitoring Mission,
12 ECMM, about meetings that they had on the 10th of August -- on or about
13 the 10th of August with officials of the Croatian government. And this
14 records that an official of the Croatian government stated that detained
15 Krajina soldiers who have not committed war crimes will be amnestied
16 within one month.
17 Now, do you recall within the first week of Operation Storm
18 discussions within the Ministry of Justice that detained ARSK soldiers
19 would be amnestied, if they had not committed war crimes?
20 A. Yes, yes, I recall that. There were conversations to that
21 effect. And when I was in Knin at the camp, I mentioned the same thing
22 in the broader context. I said that all those who were supposed to be
23 kept in custody and who would eventually be found not guilty of having
24 committed war crimes would be set free. This was a well-known fact. I
25 and all those from the Ministry of Justice used every opportunity to
1 interpret this decision and convey it to those in the field.
2 I don't know, though, whether I am the person referred to in this
4 Q. Okay. Can you tell us what was your understanding of why
5 amnesties were being considered and, ultimately, amnesties and pardons
7 A. I can explain that from a number of different aspects; my
8 personal aspect, my professional aspect, and the way I saw it as a
9 Croatian citizen and a person who had personal tragedies concerning my
10 family in Vukovar, some of whom were captured and killed.
11 It is crystal clear to me that this pardon had to take place, for
12 without it, there would never have been any sort of peace, be it in the
13 Danubian region or elsewhere. My colleagues and I were deeply convinced
14 that it needs to take place. Although, as I mentioned already, we were
15 all highly sensitive about that issue. It very difficult to forgive at
16 the time when Croatia was in flames. Still, the pardon did take place.
17 I personally participated in the process; I disseminated the idea in the
18 field; and I personally believed that we could not move forward without
19 it. It was a basic step to take so as to enable Croatia to move on.
20 I don't know whether this answers your question, but this would
21 be my explanation.
22 Q. It does, Mr. Penic, and I wanted to hear your answer first before
23 I show you the meeting that took place - and this is Exhibit D681 -
24 between President Tudjman and Mrs. Elisabeth Rehn. And
25 President Tudjman's explanation - and this begins at page -- transcript
1 page 6523, beginning at line 13.
2 MR. MISETIC: And if we turn to page 2 in Exhibit D681.
3 Q. Unfortunately, Mr. Penic, I only have it in English because the
4 conversation was in English.
5 But President Tudjman says:
6 "We in Croatia ... wanted to avoid everything that took
7 place ... and we propose that after Tito this Yugoslav crisis by peaceful
8 means on a confederal basis ..."
9 He goes on:
10 "... Croatia and then Bosnia suffered such an aggression, I don't
11 know if you visited Vukovar or not. But a third of Croatia was
12 destroyed. 400.000 Croats, Hungarians, Czechs, Slovaks were forced out
13 of their homes. And naturally people were" -- I believe it should say
14 "... murdered. It is understood that in the course of the liberation of
15 these areas, on the Croatian side, it was also impossible to constrain
16 the fighting to fighting in gloves."
17 And he goes on:
18 "Therefore, first of all, the Yugo-Communist army and the Serbs
19 committed terrible crimes in such an aggression, aimed at creating
20 Greater Serbia. And later, in the liberation of these areas, it was also
21 impossible to prevent people who had suffered and who were now returning
22 to those areas from committing acts of revenge and stupidity such as
23 destroying homes and so forth. Therefore it is important now to forget
24 all of this as soon as possible and to build normal relations among
25 people, among nations, rather, even though it is necessary to punish
1 individuals for war crimes. If we went to this breadth, if we were to
2 approach this issue so broadly, this would mean a new deepening of
3 mistrust and conflict. So it is more important that we develop a new
4 order and establish trust."
5 Now, Mr. Penic, your prior answer to my question also suggested
6 that it was -- your view was that the amnesty needed to take place so
7 that Croatia could move on. Was this, in fact, the general view from
8 President Tudjman down to your level as Assistant Minister that this
9 amnesty needed to be passed so that reconciliation could take place?
10 A. Yes, absolutely. As the secretary of the state commission for
11 pardons, I had the opportunity to acquaint President Tudjman with some of
12 the decisions. I will never forget his sentence when he said one needs
13 to forget. I served a prison sentence, but I'm not sure how much it
14 changed me. I didn't have much opportunity to meet with him personally,
15 but these were his words. If you're asking me about my impression, when
16 he says stupidity, such as destroying homes, I am quite certain that he
17 didn't have war crimes in mind either. He, as well as the entire top
18 state -- state top and the public and all those people of goodwill always
19 rejected war crimes as something that is not accepted in civilisational
20 terms, something that should not be put aside. This was a general
21 position at the time, and I believe it is still is in Croatia.
22 Q. Thank you. I'd like to turn your attention to what happened
23 after the amnesty law was passed.
24 MR. MISETIC: If we could please go to Exhibit D682.
25 Q. And you will see, Mr. Penic, that this is a Security Council
1 report on the situation of human rights in Croatia, and it's dated
2 5 March 1997.
3 MR. MISETIC: And if we could go to paragraph 24, please.
4 Q. It says:
5 "In the region at present, administered by UNTAES," which is
6 eastern Slavonia, "the application of the amnesty law continues to cause
7 widespread concern among the Serb population. At the time of writing of
8 the present report, the Croatian authorities were preparing a definitive
9 list of persons believed by them to be in the region and who, in the eyes
10 of the Ministry of Justice, are not covered by the amnesty law. All
11 those not on the list may then consider themselves as amnestied."
12 And then it says:
13 "At the request of UNTAES, on 27 February, the deputy minister of
14 justice of Croatia publicly announced that such lists," meaning
15 unofficial lists, "had been prepared by unauthorised persons, had not
16 been prepared by the government or the judiciary, and were not valid. He
17 stated that the final list of war crimes suspects would be released as
18 soon as possible."
19 MR. MISETIC: If we could scroll down, please.
20 Q. It says in the middle of the paragraph:
21 "The Croatian government has a clear interest in detaining and
22 prosecuting persons reasonably suspected of war crimes. However, appeals
23 have been made to the government, including by the Special Rapporteur of
24 the Commission on Human Rights to finalise its lists of war crimes
25 suspects on the basis of existing evidence, to remove uncertainty, and
1 ensure that arbitrary arrests are not made among Serbs returning to
3 And let me just call your attention, this Trial Chamber has heard
4 testimony, beginning at page 24812, at line 19, if I -- that as part of
5 this process of preparing lists, Croatia was urged to reduce the number
6 of people on the list from 150 to 85, and then, ultimately was urged by
7 the international community to reduce that list further to 25 Serbs who
8 would be on this list, and then everyone not on the list would be
9 considered amnestied.
10 Now, my question, Mr. Penic, is the reference in the
11 Security Council report as to the deputy minister of justice addressing
12 this issue of the lists, were you the deputy minister referred to in this
14 A. It resembles the description of my title but any public
15 appearances were prohibited to me. If this was a statement of a public
16 official, then it is not myself.
17 As for the drafting of such lists and registers, the customary
18 model used by the ministry and my administration was that we would send a
19 circular letter to all the Courts in Croatia asking for coming up with
20 all the documents they have and to make a specific list of all criminal
21 proceedings and procedures they had instituted. And we did this over and
22 over again, because we wanted to have the most recent information about
23 proceedings for war crimes, not only against Serbs but everyone else. We
24 did not distinguish between ethnic groups. We kept registers of all war
25 crimes in general. In that respect, I recall well, and I mentioned that
1 in my statement to Mr. Mikulicic, no matter how little I recall it, there
2 must be registers in the Ministry of Justice. This is the model we
4 As for the reduction of the number of people concerned, we did
5 gather information. We did systematise information. And I know that the
6 list was reduced. But I did not take part in it directly. It was done
7 by the state top in the course of talks and negotiations I'm not privy
8 to. Obviously they wished to stabilise the situation as soon as
9 possible, and they did some of those things without consulting the
10 profession. I believe they reduced the number of crimes, although I
11 personally would not have. It was their view, and they did it in good
12 faith. That was my impression.
13 Q. Do you know whether, as a result of the creation of these lists,
14 whether the amnesty law was supposed to be interpreted in such a way that
15 those -- anyone who -- any Serb who was not on the list of 25 would be
16 considered amnestied, including, amnestied for war crimes?
17 A. All those who were not on the war crimes list, this was supposed
18 to be the interpretation, that all others would be included in the
19 amnesty. So everyone, save for those who had committed war crimes.
20 Q. When you say "save for those who committed war crimes," do you
21 mean specifically those that were identified on the list of 25?
22 A. Well, the quality of evidence, as far as I could see as a
23 professional and person who worked for a number of years as a
24 Deputy State Prosecutor, was based on a realistic prosecutorial
25 assessment about the quality of evidence they had at their disposal. All
1 case files, I believe there were around 45 or so which pertained to war
2 crimes, I presume, although I was not familiar with individual cases, had
3 quality and sound arguments to corroborate such charges. If someone was
4 pardoned, despite having committed war crimes, is something I -- that is
5 something I cannot comment on. But the logic dictates that such
6 instances did happen under the pressure of the international community,
7 which probably carried out an analysis of their own, having finally
8 concluded that the -- there was not enough evidence of someone in
9 particular having committed war crimes. And according to the principle
10 in dubio pro reo, they asked that a number of cases be withdrawn.
11 Q. I just want to be clear on this, and this is my last question.
12 And I apologise to the Chamber if it's repetitive, but I want to be
14 Was it your understanding as assistant minister of justice that
15 once these lists, or this list, was finalised in terms of the persons on
16 the list, that those persons who were not on the list would be covered by
17 the general amnesty, even if there was a allegation that such a person
18 not on the list had committed war crimes?
19 A. Yes. Yes.
20 Q. Thank you very much, Mr. Penic.
21 MR. MISETIC: Mr. President, I have no further questions.
22 JUDGE ORIE: Thank you, Mr. Misetic.
23 Mr. Hedaraly.
24 Mr. Penic, you will now be cross-examined by Mr. Hedaraly.
25 Mr. Hedaraly is counsel for the Prosecution.
1 Cross-examination by Mr. Hedaraly:
2 Q. Good afternoon, Mr. Penic.
3 MR. HEDARALY: If we can go to D680 again. That was the Law on
4 General Pardon that we have discussed now a few times, that you have
5 discussed a few times.
6 And the Article I want to focus on is Article 3, which are the
7 crimes that are excluded from the -- from the amnesty law. Is that
9 A. Yes.
10 Q. And we see here that there are -- it goes from Article 119 of the
11 basic Criminal Code up to and including Article 137; is that correct?
12 A. Yes.
13 MR. HEDARALY: If we can just pull up D1627 now, which is the
14 basic Criminal Code, or the basic criminal law of Croatia.
15 JUDGE ORIE: Yes. When we are waiting for it, I noticed,
16 Mr. Hedaraly, that you are using the word the Law on General Pardon where
17 the text -- the title of the law is translated as Law on General Amnesty.
18 I also noticed that in some of the decisions that pardon is granted in
19 relation to persons that have not yet been convicted. If you look at it
20 from a comparative view, then I just want to put on the record that the
21 use of the word "amnesty," "pardon," is not very consistent in this
22 respect. And since you are mixing them up, even using another term, I
23 would like to put that on the record, that "pardon" should not be
24 necessarily understood as what pardon is considered to be, for example,
25 in France or ...
1 Because often what is called pardon here would be called amnesty
2 by others; whereas, sometimes amnesty may have been called pardon. So I
3 just wanted to make sure that we are dealing with a -- an animal under
4 several names and an animal both striped sometimes and sometimes of
5 another colour.
6 Please proceed.
7 MR. HEDARALY: Thank you, Mr. President.
8 And we saw the -- I'm sorry. The list from Article 119 to
9 Article 127, where the war crimes listed there. And if we go in the
10 law -- if we go to page 32 of the B/C/S.
11 And, Your Honours, the whole translation was not uploaded, only
12 selected portions. The portion I want to deal with has been uploaded
13 separately. And if we can ask Mr. Registrar to call that under doc
14 ID 0606-8913-EDT
15 I just mentioned and that I want to go through. And I will then ask to
16 link the translation with the -- with the exhibit that is admitted.
17 Q. So we see here, Mr. Penic, Article 119 begins the section in
18 chapter 15 that is called "Crimes Against Humanity and
19 International Law." Is that correct?
20 A. Correct.
21 Q. And if we go to the Article 137, which is the last one listed in
22 the Article 3 of the Law on Amnesty --
23 MR. MISETIC: Which is page 36 of the B/C/S, and I think it's
24 page 18 in the English. Thank you.
25 THE REGISTRAR: It is page 10, just for the record.
1 MR. HEDARALY: Thank you, Mr. Registrar.
2 Q. And we see that after Article 137, which is the last one, we
3 start chapter 16 which is a different section. So the entire section on
4 war crimes and crimes against international law is covered in chapter 15
5 and is referenced in Article 3 of the Law on Amnesty. Correct?
6 A. [In English] Yes.
7 Q. And all those crimes are concluded from the amnesty law?
8 A. Yes.
9 Q. And if which go to Article 120 now.
10 MR. MISETIC: If we can move back to page 32 in the B/C/S and
11 page 1 of the English, of the new translation. Thank you, Mr. Registrar.
12 Q. You see Article 120 is headed: "War Crime Against a Civilian
14 MR. MISETIC: And if we turn to the next page in the English
15 only, and it's in the first paragraph in the B/C/S, the last four or five
16 lines. The English, one of the war crimes that is listed is:
17 "... property be confiscated or that the property of the
18 population be looted or that the property be unlawfully and wantonly
19 destroyed or seized and large-scale without this being justified by
20 military needs."
21 And it goes on. Do you see that?
22 A. [Interpretation] Yes.
23 Q. So that means that looting and burning as a war crime was also
24 excluded from the amnesty law; correct?
25 A. Correct.
1 Q. And if we can just go back to D680 now, which was the Law on
3 MR. HEDARALY: And, Mr. President, if we could have permission to
4 link that translation that was uploaded to D1627, which is an admitted
5 exhibit, we would be grateful.
6 JUDGE ORIE: Any objections?
7 Mr. Registrar, this portion of the translation can be linked
8 to -- let me just check. One second, please.
10 Mr. Registrar, could you confirm that this will be linked.
11 THE REGISTRAR: Your Honours, the document ID English translation
12 0606-8913-ET will be attached to Exhibit D1627. Thank you.
13 JUDGE ORIE: Thank you. Please proceed.
14 MR. HEDARALY: Thank you, Mr. President.
15 And if we could go to the second page of both the B/C/S and the
16 English, this time Article 3 but the second paragraph.
17 And I believe here, once again, Mr. President, we have the issue
18 of the "and" and the "or" in the second to last line. But we will -- the
19 whole document will be revised so it's the same language in the original
20 from the -- from Article 1.
21 But, Mr. Penic, my question is: According to this paragraph, any
22 crime -- any other crime that did not fall within that category of being
23 during the armed conflict, aggression, and rebellion, and in connection
24 to it, would also be excluded from the Law on Amnesty; correct?
25 A. Yes. These would be offences of a classical crime committed by
1 classical or conventional criminals, as it were.
2 JUDGE ORIE: Just for my understanding, Mr. Hedaraly, if you
3 positively define conditions and you use the word "and," isn't it true
4 that if you then exempt, make exceptions, that you should make an
5 exception with the word or? And here I read that the word is,
6 apparently, "ili," which is -- or if I say in order to get paid you have
7 to appear at work and you have to wear a robe, now, if I want to accept
8 this from payment, then you say, If you do not appear or do not wear a
9 robe, you will not be paid. So in a positive formulation, where "and" is
10 used, doesn't mean that in a negative exemptive clause that you would
11 also have to use "and." I think, as a matter of fact, that there you
12 would properly use the word "or."
13 MR. HEDARALY: I think, Mr. President, I think the whole sentence
14 and the whole Article and the translation that I had actually
15 specifically identifies the two conditions and accepts them, and that's
16 why there may be an "and." But when we get the complete revision, it's
17 going to be clear. Although I do see Your Honour's point, and I think
18 that the witness understands.
19 JUDGE ORIE: Because it reads "which were not committed there, or
20 which are not related to." There, the "or" makes sense, where the "and"
21 makes sense in a positive formulation.
22 I just wanted to -- before we start getting nuts and bolts
23 loosened from translations, that there is a -- maybe a difference here.
24 Please proceed.
25 MR. HEDARALY: Thank you, Mr. President.
1 MR. MISETIC: Mr. President, I'm not sure if this is along your
2 point, but the form of the question, the initial question, was that if it
3 did not fall within that category of being during the armed conflict
4 aggression and rebellion.
5 JUDGE ORIE: This is the -- one of the other ors.
6 MR. MISETIC: Right. I think it should be "or rebellion."
7 JUDGE ORIE: If you would please rephrase your question because
8 Mr. Penic might have lost track of what he has asked.
9 MR. HEDARALY: I think -- okay.
10 Q. Crimes that were not -- that did not take place during the armed
11 conflict and, at the same time, that were not in connection with the
12 armed conflict, so only one of the two conditions may have been
13 satisfied. For example, it may have occurred during the armed conflict
14 but not in connection with it. Just a temporal scope, if only that would
15 have been the case, that would have been excluded by the amnesty law.
17 A. If I may, I will give you the following answer: It is only the
18 legislature who can interpret the law. I cannot; I can only read it. In
19 my reading of it, well, it can be read on the Internet site of the
20 Official Gazette of the Republic of Croatia.
21 My reading of it is as follows: The intention was to punish both
22 those who were in the armed rebellion and those who were in the armed
23 conflicts. In other words, in answer to your question, they could have
24 been published for or or and for and and, cumulatively and separately.
25 At any rate, both those who did something in the armed rebellion
1 and in connection with the aggression could fall under it and those who
2 did something in relation to or related to the armed rebellion. I don't
3 know how far this takes us in terms of bus being muddled up.
4 JUDGE ORIE: I'm afraid that we should take our 19 hours to think
5 about it.
6 MR. HEDARALY: Mr. President, I actually don't have any further
7 questions so ...
8 JUDGE ORIE: You don't have any further questions. Then you have
9 three minutes to further revolve this matter.
10 MR. HEDARALY: Thank you.
11 Q. Let's take your -- the example that Mr. President gave earlier.
12 If there was a common crime that took place during the rebellion or the
13 conflict or any of the -- the aggression, if there was a crime that took
14 place that had nothing to do with the armed conflict as such, it was a
15 neighbour stealing a neighbour's cow or killing his neighbour for reasons
16 unrelated to the armed conflict, would that be subject to the amnesty
17 law, that crime?
18 A. Let me answer this way: In application of this law, a case law
19 developed. It was the courts who applied the laws and regulations. It
20 was the courts who, on a case to case basis, had to make an assessment of
21 whether something was done under the garb of darkness or criminal
22 conduct. If I did the most common -- the commonest of crimes, if I
23 committed a crime outside of armed activities, and if I did something
24 because I knew that property would be abandoned as a result of the war
25 And war activities, then I committed something that was related to the
1 war conflict. What had to clarify the whole matter was the developing
2 case law.
3 I believe the nuances were not so difficult to distinguish. The
4 existence of war circumstances enabling a common citizen to become a
5 criminal is something, in my view, if you're asking for my opinion, that
6 should be in interpreted as crime committed in the aggression or related
7 to aggression. That same individual, perhaps, barring these war
8 circumstances, would not have committed the offence.
9 I don't know if I was clear enough.
10 Q. Thank you, Mr. Penic.
11 MR. HEDARALY: Your Honour, that concludes the cross-examination.
12 JUDGE ORIE: Yes. Is there any need for re-examination of the
14 [Trial Chamber confers]
15 JUDGE ORIE: Mr. Penic, since the Chamber has no further
16 questions for you, this concludes your testimony in this Court. I would
17 like to thank you very much for coming the long way to The Hague and/or
18 for answering all the questions that were put to you by the parties and
19 by the Bench. And I wish you a safe return home again.
20 THE WITNESS: [Interpretation] Thank you.
21 JUDGE ORIE: Would you please follow Mr. Usher, yes.
22 [The witness withdrew]
23 JUDGE ORIE: I suggest to the parties that we deal finally
24 tomorrow with the list which is submitted by Mr. Kay, that is, the bar
25 table documents.
1 Mr. Kay, do I understand well, that, for example, on your list,
2 the second, third, and fourth person are covered by that one decision to
3 open an investigation so that it includes three persons, which would then
4 mean that, for example, for two, three, and four we would need one
5 exhibit number?
6 MR. KAY: Yes.
7 JUDGE ORIE: Yes. Then, Mr. Registrar, you are invited to
8 provisionally assign, and we'll hear from you tomorrow, exhibit numbers
9 in accordance with the 65 ter numbers; that is, one 65 ter number
10 resulting in one provisional exhibit number.
11 Then I would like to hear from the other parties whether there is
12 any objection against the way in which it is presented, including the
13 linkage to other exhibits.
14 MR. HEDARALY: No, Your Honour. Provided it's accurate. And we
15 will review it. There are no problems.
16 JUDGE ORIE: Same for the other parties.
17 And then, finally, I have not yet had an opportunity to see what
18 the reasons were for P1039 to be under seal, whether that creates any
19 further problems.
20 We will deal with this matter tomorrow. The Chamber will give an
21 opportunity to the parties to make their further submissions on the still
22 outstanding matter which is involvement in interviewing witnesses by
23 persons who may be -- may be linked in whatever way to events that
24 happened at the time. Prosecution asked for 15 minutes. We'll deal with
25 that in the first session.
1 And then, as matters stand now, it may well be that there will be
2 sufficient time to do the housekeeping session as well. Yesterday I have
3 prepared the -- myself for the latest MFI list. Which, if it is not yet
4 distributed, will be distributed this afternoon so that we know what we
5 are talking about.
6 Mr. Mikulicic, you are on your feet. Any other matter?
7 MR. MIKULICIC: Yes, Your Honour, I was just -- I would like to
8 inform the Chamber that we will, during this afternoon, submit our
9 bar table submission relating to General Repinc's testimony. And
10 probably we could discuss it tomorrow, if there would be no objections
11 from the OTP side.
12 JUDGE ORIE: Everyone is invited to look at it, and then we'll
13 see whether we can deal with it tomorrow. We are put on notice.
14 We adjourn for the day, and we'll resume tomorrow, Wednesday, the
15 20th of January, 9.00, Courtroom III.
16 --- Whereupon the hearing adjourned at 1.55 p.m.,
17 to be reconvened on Wednesday, the 20th of
18 January, 2010, at 9.00 a.m.