Tribunal Criminal Tribunal for the Former Yugoslavia

Page 26906

 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

 7     courtroom.

 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.

Page 26907

 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

22     cases.

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

25     within.

Page 26908

 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:

Page 26909

 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

13     evidence.

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

25     mispronunciation.

Page 26910

 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

25     Una.

Page 26911

 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

Page 26912

 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

Page 26913

 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

20     document.

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 --

Page 26914

 1        A.   It says footnote 105.

 2             JUDGE ORIE:  Which is 3D00641.  You would like to have it on the

 3     screen?

 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,

18     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 --

Page 26915

 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,

Page 26916

 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.

Page 26917

 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

Page 26918

 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

Page 26919

 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

22     evidence.

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.

Page 26920

 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 --

Page 26921

 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

Page 26922

 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?

Page 26923

 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

 9     there.

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.

Page 26924

 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

Page 26925

 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

14     documents.

15             At any rate, mention was made of firing in that general area as

16     well.

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.

Page 26926

 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

 6     Bench.

 7             Thank you, and you may -- you are excused.  You may follow the

 8     Usher.

 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.

Page 26927

 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

11     understand?

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.

Page 26928

 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

21     attendance.

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.

Page 26929

 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

 4     discussed?

 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

23     satisfied?

24             Would that not be more practical?

25             MR. HEDARALY:  Mr. Penic, does the statement that you see on your

Page 26930

 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

13     answers.

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.

Page 26931

 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

10     procedure.

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

Page 26932

 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-ā-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

19     proceedings.

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.

Page 26933

 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

Page 26934

 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

22     circumstances.

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

Page 26935

 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

 6     commission?

 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

Page 26936

 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

Page 26937

 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.

Page 26938

 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

Page 26939

 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

12     genocide.

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

15     speedily.

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

Page 26940

 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

10     ago?

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

15     rejected.

16             MR. MIKULICIC: [Interpretation] could I have a number for this

17     document.

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.

Page 26941

 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.

Page 26942

 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

13     topic.

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

18     documents.

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.

Page 26943

 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

Page 26944

 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.

Page 26945

 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

Page 26946

 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

Page 26947

 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

Page 26948

 1     prosecuted.

 2             In para 2, where proceedings have been launched, they will be

 3     suspended.

 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.

Page 26949

 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.

Page 26950

 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

12     law.

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

Page 26951

 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 --

Page 26952

 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

15     around.

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

Page 26953

 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.

Page 26954

 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

Page 26955

 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.

Page 26956

 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

20     questions.

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.

Page 26957

 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

14     right?

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.

Page 26958

 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

 9     implementation.

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

Page 26959

 1     released.

 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

12     ways.

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

24     consider.

25        A.   Yes.  Reasons to suspect was a category which, under the then

Page 26960

 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

 8     orders.

 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

Page 26961

 1     story.  They contained crime scene investigation reports, interviews with

 2     either eye-witnesses or individuals who had knowledge or information of

 3     it.

 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

Page 26962

 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

Page 26963

 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

Page 26964

 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

25     page.

Page 26965

 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

Page 26966

 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

Page 26967

 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

 5     described.

 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

Page 26968

 1     into that.

 2             MR. KAY:  Your Honour, may this document be made an exhibit,

 3     please.

 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

Page 26969

 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

 8     way.

 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.

Page 26970

 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

21     yet?

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

Page 26971

 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.

Page 26972

 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

10     documents.

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.

Page 26973

 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

Page 26974

 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

25     English.

Page 26975

 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

 8     one.

 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

Page 26976

 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,

14     surprisingly.

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

Page 26977

 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

12     that.

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

15     paramilitaries?

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

23     easily.

24             MR. MISETIC:  Mr. Registrar, if we could please see Exhibit D685,

25     please.

Page 26978

 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

Page 26979

 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

 3     document.

 4        Q.   Okay.  Can you tell us what was your understanding of why

 5     amnesties were being considered and, ultimately, amnesties and pardons

 6     implemented?

 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

Page 26980

 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

Page 26981

 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

Page 26982

 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

Page 26983

 1     ensure that arbitrary arrests are not made among Serbs returning to

 2     Croatia."

 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

13     report?

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

Page 26984

 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

 3     followed.

 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

Page 26985

 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

13     clear.

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.

Page 26986

 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

 8     correct?

 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 ...

Page 26987

 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, that will be the chapter 15, which covers the articles

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.

Page 26988

 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

13     Population."

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.

Page 26989

 1        Q.   And if we can just go back to D680 now, which was the Law on

 2     Amnesty.

 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.

 9             D1627.

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

Page 26990

 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.

Page 26991

 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.

16     Correct?

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

Page 26992

 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

Page 26993

 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

13     witness?

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.

Page 26994

 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.

Page 26995

 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.

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