1 Tuesday, 11 July 2006

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 7.59 a.m.

5 JUDGE ROBINSON: Will the registrar please call the case.

6 THE REGISTRAR: Good morning, Your Honours. This is the case

7 number IT-95-14/2-R77-T, the Prosecutor versus Josip Jovic.

8 JUDGE ROBINSON: Appearances for the Prosecution.

9 MR. ACKERSON: Good morning, Your Honours. David Ackerson on

10 behalf of the Prosecution. I'm here with Salvatore Cannate, and

11 Sebastiaan van Hooydonk, our case manager. Thank you.

12 JUDGE ROBINSON: Thank you.

13 And for the accused?

14 MR. KRSNIK: [Interpretation] Good morning, Your Honours. I'm

15 Kresimir Krsnik, attorney-at-law from Zagreb. I'm joined today by my

16 legal assistant, Ms. Koraljka Tomasic, a member of the Croatian bar.

17 JUDGE ROBINSON: Thank you.

18 Mr. Ackerson, you are to present your case.

19 MR. ACKERSON: Yes, Your Honour.

20 JUDGE ROBINSON: You may make a short opening, if you wish.

21 MR. ACKERSON: I would like to make a very brief opening, Your

22 Honour. I would like to --

23 JUDGE ROBINSON: Yes, Mr. Krsnik.

24 MR. KRSNIK: [Interpretation] Your Honours, if I may or if you

25 think this is an appropriate time, my client would like to address the

1 Chamber. My client would like to tell you a couple of words, by your

2 leave, of course.

3 JUDGE ROBINSON: What is it about?

4 MR. KRSNIK: [Interpretation] It was precisely to explain, if you

5 believe that to be necessary, why he failed to appear the last time around

6 and to explain the reasons. We believe that it would be becoming to

7 explain the situation.

8 JUDGE ROBINSON: It's not a fact in the case anymore. He's here.

9 Let us proceed.

10 MR. ACKERSON: I just wanted to alert the AV booth that I'll be

11 showing some Sanction slides during this presentation, and just to remind

12 everyone that the protections on the witness in the case have been lifted,

13 so I am going to refer to him by name, Stjepan Mesic.

14 Your Honours, this is one of the simpler contempt cases you will

15 encounter and at the same time it's one of the egregious of these

16 newspaper contempt ones. The essential facts of this case revolve around

17 the Croatian newspaper Slobodna Dalmacija. Slobodna Dalmacija was and it

18 remains today one of the leading Croatian daily newspapers with a large

19 circulation. It was readily available at all news-stands throughout

20 Croatia in the year 2000. On December 1, 2000, Trial Chamber I served a

21 cease and desist order on Slobodna Dalmacija, and there should be a slide

22 showing on your screens right now. If it's not visible, please let me

23 know. Is the slide visible to all the Chambers [sic]? Thank you.

24 This court order demanded that Slobodna Dalmacija stop publishing

25 the statements or closed session testimony of Stjepan Mesic who was a

1 protected witness in the Blaskic case or be subject to charges of

2 contempt. Slobodna Dalmacija chose to defy that order. Indeed, Slobodna

3 Dalmacija published its intent to disobey the order on its front pages.

4 It published the order itself and it then published the entirety of

5 Mesic's closed session testimony across 22 issues in a brazen violation of

6 the court order and in utter and open contempt of this Tribunal.

7 The evidence will show that Jovic was the editor-in-chief of

8 Slobodna Dalmacija for every relevant edition in this trial and he was

9 responsible for his newspaper's actions. Beyond this various headlines

10 and by-lines show Jovic's direct involvement in the contemptuous

11 publications.

12 The evidence relevant to these proceedings is 29 issues of

13 Slobodna Dalmacija, four issues in November and 25 editions in December.

14 The four November editions published Mesic's witness statement. The

15 December editions published his closed session testimony. The evidence

16 will show that the November editions identified the fact that Mesic had

17 testified confidentially, and the November editions not only published the

18 content of his witness statement but blurred the distinction between the

19 witness statement and his courtroom testimony by referring to both of them

20 as testimony.

21 The OTP will show that the evidence in Mesic's witness statement

22 is more or less the same as his closed session testimony. The slide

23 currently being displayed on your screen comes from page 7 of the

24 November 27th issue. On this page Mesic's witness statement is

25 misleadingly advertised as testimony before the Court. The other

1 highlighted quote on the screen is similarly misleading.

2 These disclosures in November forced the Prosecution to file a

3 motion asking the Blaskic Trial Chamber to issue an order against Slobodna

4 Dalmacija to cease and desist any further publications of witness

5 statements or testimonies. The Trial Chamber issued the order the same

6 day on December 1st. The order directs Slobodna Dalmacija, the authors,

7 and those responsible to stop publishing Mesic's statements or testimony.

8 Now, the evidence will show that Jovic clearly received the cease

9 and desist order shortly after its issuance, that he clearly understood

10 its meaning, and he clearly decided to, and did, refuse to comply with it.

11 On December 3rd, 4th, and 5th, Jovic features the cease and desist order

12 on the front pages and the interior pages of Slobodna Dalmacija in a

13 variety of articles but on those days does not publish the actual

14 transcripts. On December 3rd, Slobodna declares on its front page that

15 The Hague Tribunal has forbidden Slobodna Dalmacija to publish Mesic's

16 testimony. The December 1 cease and desist order is printed in its

17 entirety in this edition. The full transcript for all the arguments

18 submitted for conducting Mesic's testimony in closed session is printed in

19 the edition. The next day, on December 4th, Jovic, on the front page,

20 declares in large bold font that he doesn't have any moral responsibility

21 to The Hague. The front page questions whether Slobodna Dalmacija will

22 receive an indictment from The Hague.

23 The next day, December 5th, a front page headline features, in

24 striking red font, a story about the court order, and the ban on the

25 publication of the testimony. It quotes then ICTY spokesperson Jim

1 Landale who says the order is actually a warning due to contempt of court.

2 Then, on December 6th, Jovic publishes his decision, his decision to

3 directly violate the order of the Trial Chamber. An article by Jovic

4 trumpets the six reasons why Slobodna Dalmacija is publishing Mesic's

5 testimony. In one of these reasons Jovic confesses to his commission of

6 contempt. He says: We decided, notwithstanding the risk, to publish the

7 whole contents of the testimony. And keep in mind, this is after three

8 days, December 3rd, 4th, and 5th of Slobodna Dalmacija deliberating about

9 the ban and the cease and desist order.

10 In this article on December 6th, it proclaims in a huge dramatic

11 headline that Slobodna reveals The Hague secret, and in another headline

12 it expresses the bottom line of this case that it is publishing the

13 transcripts of the secret testimony of the protected witness, Stjepan

14 Mesic, before the Tribunal in The Hague in March 1998 in the proceedings

15 against Tihomir Blaskic. And Slobodna Dalmacija, on December 6th, does

16 exactly that. The first excerpt of Mesic's closed session testimony is

17 published in the interior pages of that issue, and each and every day, for

18 22 days thereafter, the evidence will show that Jovic and Slobodna

19 Dalmacija publish the complete transcripts of Mesic's closed session

20 testimony, and on top of each of these articles states very clearly that

21 the witness testified secretly. And not only do the interior pages of

22 these issues publish the transcripts but the front pages of the ensuing

23 issues continue to flaunt the direct and open challenge to the Tribunal.

24 Slobodna Dalmacija again boasts on the front of its December 7th and 8th

25 issues that it is publishing Mesic's secret testimony. The front page on

1 December 7th flaunts the warning from the ICTY, that its irresponsible

2 actions must have consequences, and it also publishes in the front page an

3 actual excerpt of the closed session proceedings.

4 Your Honours, the evidence will show that for each and every

5 relevant issue Jovic is listed in Slobodna Dalmacija as the

6 editor-in-chief. The Prosecution will present evidence that Jovic's acts

7 violated two court orders. The first order is the Blaskic Trial Chamber's

8 oral orders in March 1998, that Mesic's testimony was to occur in closed

9 session; and as can be seen from the Sanction slide showing at the moment,

10 Judge Jorda in the Blaskic trial pronounces the witness -- his testimony

11 will occur in closed session, after having heard both written and oral

12 arguments from the parties which occurred in private session. Mesic's

13 name was never revealed in any open session testimony. The second order,

14 of course, is the cease and desist order directed specifically at Slobodna

15 Dalmacija and published by that newspaper.

16 The evidence will establish that Jovic and Slobodna Dalmacija

17 openly acknowledge these orders, both the oral order and the cease and

18 desist order, and printed both of them in their entirety.

19 So in conclusion, Your Honours, the evidence in this case proves

20 beyond a reasonable doubt that Jovic as the editor-in-chief of Slobodna

21 Dalmacija clearly, intentionally, and repeatedly violated the orders of

22 this Tribunal and as such Jovic interfered with the administration of

23 justice and was in contempt of this Tribunal, and we ask this Trial

24 Chamber to find him guilty as charged.

25 [Trial Chamber confers]

1 JUDGE ROBINSON: Just to clarify, are you going to call evidence

2 or are you relying on the documents that we've already admitted?

3 MR. ACKERSON: Based on the motion to admit documents, the

4 Prosecution rests.

5 JUDGE ROBINSON: I see. Thank you.

6 So, Mr. Krsnik, it's your turn.

7 MR. KRSNIK: [Interpretation] Your Honours, truly I don't know what

8 the indictment is based on. The Defence is about to show that everything

9 that my learned friend, the Prosecutor, has just stated that the case is,

10 in fact, the opposite. The Defence will show that my client, Mr. Jovic,

11 did not knowingly and wilfully violate any orders of this Tribunal.

12 Let's start at the beginning. I do know that the Chamber knows

13 full well who Mr. Mesic is, but this begins a lot earlier, back in 1998,

14 when Mr. Mesic held no political office. However, prior to that he had

15 been holding all the highest offices in the former Yugoslavia as well. He

16 was its last president, after which he became the first Croatian Prime

17 Minister. After that, he became the president of the Croatian

18 parliament. All the highest offices. After that, he retired,

19 politically, so to speak, all the way until 2000, when he was elected

20 Croatia's president, it's first president, in fact, after the late Franjo

21 Tudjman.

22 So what is it that we wish to say? This is a prominent

23 politician, a prominent personality. Everything he does is bound to rouse

24 interest on the part of Croatia's citizens, especially his voters. When

25 this man testifies, he does not testify as a victim. He can't be subject

1 to any sort of manipulation, threats, or whatever other reasons there are

2 for granting protective measures to witnesses. However, I'm not about to

3 embark on that now and start explaining the role of a protected witness,

4 if indeed he ever was one.

5 What we are about to show is that President Mesic never tried to

6 keep it secret, the fact that he was a witness. We'll show his

7 interviews, those in 1998 and those that he released when he became

8 president. We shall show his public appearances in the printed media, the

9 radio, and TV, to show that he never tried to keep this from the public

10 eye. He confirmed that he had testified at this Tribunal for Slobodna

11 Dalmacija, in fact. He told them on one occasion that he was not a secret

12 witness and that he had nothing to hide. There are things that he said to

13 Slobodna Dalmacija which seem to indicate that he was in fact happy that

14 Slobodna Dalmacija had published his transcript, the transcript of his

15 testimony. He said he was only afraid of one thing, forgery. He confirms

16 that the first portion of what Slobodna Dalmacija published was, in fact,

17 an accurate reflection of what he had said. But, Your Honours, that was

18 nearly a year after he became president.

19 Slobodna Dalmacija started publishing these pieces on the 29th of

20 November, 2000, whereas Mr. Mesic was elected in January 2000. Why was

21 this only published a year later? That is something that the Defence will

22 show. We will show that the editors of Slobodna Dalmacija received three

23 CDs, a set of three CDs, at their reception, anonymous tip-offs, regular

24 mail from citizens who do not wish to declare their names. It's as simple

25 as that. Mr. Jovic will explain that in his testimony today, Your

1 Honours, and he will give you the whole truth, truthful account of what

2 really happened.

3 When the OTP showed Judge Jorda's picture on the screen, they said

4 that in 1997 they had discussed the possibility of a private session. I'm

5 saying that that is not true.

6 Can Mr. Usher please help me to show the first page of the

7 document that I have here on the ELMO.

8 [In English] Can you put on the ELMO, please, no, on the ELMO.

9 [Interpretation] We shall be distributing copies of this document

10 in its entirety, needless to say, Your Honours.

11 Something unbelievable happened. The Defence has a document, an

12 official document, from this Tribunal from that very session. And, Your

13 Honours, you were involved in the Rebic/Marijacic case. This was

14 requisitioned as evidence. I'm trying to be very picky about my phrasing.

15 Perhaps the OTP didn't know, but I submit they should have known. This is

16 the official web page of this very Tribunal. If you scroll down the text,

17 you will see that there is a discussion of whether Mr. Mesic will, in

18 fact, testify or not. It was on this Tribunal's web pages. Anybody could

19 have checked; anybody could have had a look. This was on the web page of

20 this Tribunal throughout 1999 -- 1998, 1999, and I think the whole of the

21 year 2000, I believe. Perhaps it still is. I don't know. I haven't

22 looked.

23 I'm not sure what the dilemma is here. I'm not sure what the

24 secrets are that are involved. I am not sure why we are getting all this

25 mumbo-jumbo from the OTP. In the year 2000, Slobodna Dalmacija publishes

1 this order, it is debated and the indictment is expected in the year 2000,

2 but it only arrives five years later. Did the OTP really believe that

3 there was a violation here?

4 [In English] I will show you the pages where Mr. Mesic is

5 mentioned.

6 Okay, first of all, in the page number 2 you have -- Mr. Harmon is

7 asked for the private session and then Judge Jorda is going to the private

8 session. And after it you have all session in -- this is the second page,

9 and after it you have -- I will show you where Mr. Mesic is mentioned many

10 times. You see now, Honourable Judge, in the middle of the page

11 Mr. Harmon asked for the private session.

12 JUDGE ROBINSON: Yes, yes, we see the private session.

13 MR. KRSNIK: And after it -- would you be so kind as to bring it

14 back, please. And all private session in this transcript. And then in

15 the page number 4 they are talking about Mr. Mesic many times and after it

16 also. You will see: Need protection measure or not.

17 [Interpretation] I will provide the entire document, however. I

18 have it ready. It's right here.

19 Before Mr. Jovic will start to testify, I do have a motion to

20 submit because all these documents, you know, and the Registry is only

21 open from 9.00. I need to ask your permission to have this distributed to

22 the OTP and to the Chamber alike, not just this document in its entirety,

23 but other documents, too.

24 JUDGE ROBINSON: Just a minute.

25 [Trial Chamber confers]

1 JUDGE ROBINSON: Yes, please continue, Mr. Krsnik.

2 MR. KRSNIK: [Interpretation] Thank you very much.

3 The fact itself that a lawyer who wasn't involved in that case is

4 in possession of a document like that -- we're in private session and Lord

5 knows what that means. How did I get this -- or rather, Mr. Jovic, who

6 was the person who gave this document to me? I think the fact is

7 self-explanatory, frankly.

8 What causes me concern is Exhibit P7, OTP Exhibit P7, which has

9 been admitted into evidence, but then it was already in the

10 Rebic/Marijacic case by this Trial Chamber. All right, this was on the

11 web page of the Tribunal. Of course he could have downloaded it back in

12 1998.

13 Your Honours, a number of different Croatian newspapers, Vjesnik

14 and Vecernji List, I'm just naming the two most popular ones and the two

15 most widely read ones, especially Vecernji List published the testimony of

16 Mr. Mesic in its entirety. Even in those dailies, and we're about to show

17 that, Mr. Jovic is about to show you that, we have the source of this

18 leak, if you like. It became a bit of an open secret, if you like. What

19 happens? Nothing.

20 In 1998 you have the whole statement, the whole testimony, of

21 Mr. Mesic published in a number of different Croatian dailies. Mr. Mesic

22 confirms that this indeed was the case, that he did testify at The Hague

23 Tribunal. He confirms this for the sake of all the media. He's not

24 keeping it under wraps or anything, and we have documents to show that.

25 Well, what happens now? Firstly, in 2000, in the first three

1 days, Slobodna Dalmacija merely reprinted the same text that was published

2 back in 1998 because that was something, a statement that was given during

3 the investigation stage, and only then did they in fact go on to publish a

4 transcript from the trial itself. The OTP obtains this order. But what

5 is noteworthy is that all the other most widely read dailies and weeklies

6 in Croatia also published this transcript, magazines such as Globus, as

7 well as a number of other dailies. But the only offices that actually

8 received this order were Globus and Slobodna Dalmacija, not the other

9 ones. There was a selection process at work there to keep this from being

10 published, but the Defence believes there are other reasons at stakes here

11 throughout. Even after this order other media continue to publish the

12 transcript in parts or in whole. Five years have now gone by. The OTP is

13 greatly concerned because they're taking five years for this. But the

14 only person that they actually end up indicting is Mr. Jovic. From a

15 marginal publication called Hrvatsko Slovo, three journalists and two

16 editors -- by the way, they only ever print 1.200 copies of this paper,

17 while Globus is published in 100.000 copies. They don't choose to indict

18 the Globus people, but they do choose to indict the Hrvatsko Slovo people.

19 So what is the last thing to happen? There is a motion for a joinder? I

20 oppose this. You didn't accept my reasons, okay, so these journalists are

21 given up, these charges are now dropped, but the same reasons for some

22 reason do not seem to apply to Mr. Jovic.

23 One of the journalists in relation to whom charges were dropped by

24 this Trial Chamber has in the meantime violated six different orders of

25 this Tribunal -- or rather, since 2000 -- or rather, between 2000 and

1 2005 -- or rather, between 2000 and 2006. The last order was issued in

2 2006. There was a spectacular police search all over Zagreb. They were

3 trying to catch him. But that's all right.

4 Let me not take this any further now. I believe the Defence has

5 provided sufficient arguments, and we shall corroborate this by producing

6 evidence, first of all, by having Mr. Jovic testify --

7 JUDGE ROBINSON: Just for the record, you say that we didn't

8 accept your reasons in relation to the application for joinder. The

9 application for joinder was not granted; that's why we are here with

10 Mr. Jovic today.

11 MR. KRSNIK: [Interpretation] That is precisely what I said, that

12 you did not accept the reasons for a joinder. I'm not sure what the

13 transcript says.

14 JUDGE ROBINSON: I see. The reasons offered by the Prosecution.

15 MR. KRSNIK: [Interpretation] That's right, that's right. You

16 didn't accept the joinder, and after that the OTP gave up the indictment

17 altogether.

18 I do not wish to belabour this point, Your Honours. I believe the

19 Defence will demonstrate and call into doubt all the reasons and grounds

20 presented by the OTP.

21 My last request, Your Honours, if I may be allowed to distribute

22 to you and the OTP the motion that I was unable to file at 8.00 this

23 morning because I -- it was explained to me that the motion can be filed

24 only as of 9.00. I believe it would be of utmost importance for you to

25 review the motion for the sake of the further proceedings in the course of

1 the day, especially so because the motion contains evidence, written

2 documents, which I wish to tender into evidence through Mr. Jovic, and I

3 wish to use them. These are mostly newspapers, no other documents than

4 that, and I wish to use them in the same way the Prosecutor did. These

5 are interviews --

6 JUDGE ROBINSON: Mr. Ackerson is on his feet.

7 MR. ACKERSON: I apologise. I'm presuming we're still in opening

8 statements here, although it's getting a little blurry. But I wanted to

9 raise an issue which is that we are looking to find the accused's exhibit

10 list. We've -- we see that he has on his witness list indicated that

11 Mr. Jovic might testify. We can't find an exhibit list. I would ask the

12 Court to confirm that because I'm not quite sure that he's listed any

13 exhibits. Therefore, if he's intending on introducing exhibits today, we

14 would obviously object. He's not given us notice, he's had plenty of

15 time. And apparently what it sounds like is that he is intending on

16 introducing evidence that he has never notified us of before.

17 JUDGE ROBINSON: Would you clarify, Mr. Krsnik.

18 MR. KRSNIK: [Interpretation] That's correct, Your Honour. I

19 confirm everything that Mr. Prosecutor said. I did not deliver the

20 exhibit list to the Prosecutor before because I didn't have it. The list

21 of exhibits consists only of the newspapers where Mr. Mesic and Madam

22 Carla del Ponte gave their interviews in 1998, which support the case of

23 the Defence. The 2000 interview by Madam del Ponte, which was published

24 in all the Croatia mass media - and this will become clear from the

25 evidence I adduce there - Madam Carla del Ponte informed the public of

1 Mr. Mesic's testimony. I don't see where the problem is. These are short

2 articles that have been translated.

3 I -- it took me some time to find them because they were published

4 in 1998, and I do not have as large a team as the Prosecution does.

5 That's the first point.

6 The second point is that Mr. Jovic in the past month was in a very

7 difficult position, and I was unable to work with him at all. What's

8 more, we didn't have a single pre-trial conference, and there was no

9 occasion for us to discuss this. In a contempt case, I believe that this

10 Trial Chamber may, proprio motu, decide in favour or against my motion.

11 These are only four exhibits, namely four excerpts from

12 newspapers, including this document that I showed on the ELMO here. This

13 is the official Tribunal document, and I don't believe the Prosecution

14 will be opposed to that. Therefore, in all five documents --

15 JUDGE ROBINSON: Mr. Krsnik, the Trial Chamber's order of the 15th

16 did require you to file your exhibits and to provide copies to the

17 Prosecution. But I understand that you are submitting that.

18 Notwithstanding your lateness, you are saying that no -- there is no

19 prejudice to the Prosecution in the light of the kind of exhibits that you

20 are seeking to have tendered.

21 JUDGE BONOMY: Can I ask you: Where is the argument that you're

22 trying to advance now, where is it referred to in your pre-trial brief?

23 MR. KRSNIK: [Interpretation] We had only one preliminary motion,

24 which did not contain an exhibit list of ours and --

25 JUDGE BONOMY: There must be a mistake in translation. My

1 question relates to your pre-trial brief. You're advancing an argument

2 here about the information already being in the public domain prior to the

3 publication in November and December 2000. Where do we see reference to

4 that in your pre-trial brief as part of your case?

5 MR. KRSNIK: [Interpretation] As far as I recall, without going

6 into my pre-trial brief now, I don't believe I mentioned it there. I

7 think you're right, Your Honour.

8 JUDGE BONOMY: Thank you.

9 MR. KRSNIK: [Interpretation] Because, as I wanted to say a moment

10 ago ...

11 JUDGE ROBINSON: Mr. Ackerson.

12 MR. ACKERSON: Your Honour, I would -- I would object to any

13 admission of evidence without notice in any form to us, either on the

14 exhibit list or in the pre-trial brief.

15 It is -- it does prejudice us. I don't know what he's referring

16 to. I haven't had any chance to review the documents, so I would object.

17 JUDGE ROBINSON: We'll consider it.

18 [Trial Chamber confers]

19 JUDGE ROBINSON: Mr. Krsnik, explain the relevance to the case,

20 the documents whose admission you're seeking.

21 MR. KRSNIK: [Interpretation] Firstly, the document I showed to you

22 on the ELMO has to do with Exhibit P7 that was admitted in the Marijacic

23 Rebic case and in the Jovic case. This is in evidence, and the document I

24 took from the public web page shows clearly that it wasn't a private

25 session --

1 JUDGE BONOMY: Yeah, the document -- the first -- the transcript

2 is in the evidence in Rebic, but there was no -- there was no extract from

3 a web page in the case of Rebic.

4 MR. KRSNIK: [Interpretation] Of course not, Your Honours. I do

5 appreciate the work of the interpreters here, but there may have been a

6 misunderstanding. The transcript from the private session was held before

7 Judge Jorda in 1998. There is one transcript that the Prosecutor adduced

8 as evidence and you admitted into evidence. The Prosecutor's argument,

9 main argument, was that this was a transcript from a private session where

10 protective measures were ordered in -- with regard to Mr. Mesic.

11 The document that I would wish to tender into evidence, which is

12 the same document, the same transcript, containing the entire private

13 session but which was published on the official web pages of this

14 Tribunal. I have it in my possession and I want everyone to see that.

15 And I would wish to examine Mr. Jovic about it, about how he came by the

16 document, because this very document was published in Slobodna Dalmacija.

17 This very transcript that the Prosecution tendered into evidence and you

18 admitted into evidence as P11 is the same one that I showed to you on the

19 ELMO now. The Prosecutor gave you the same transcript, but not all of it

20 was translated. I'm saying that this document that I have here was taken

21 off the official web page of the Tribunal and had been there, available to

22 anyone in the public domain, which is something we will later on support

23 with further arguments.

24 The interviews given to Vecernji List and Jutarnji List by

25 Mr. Mesic in 1998 were interviews where he confirmed that he was

1 testifying in two cases before this Tribunal. There was also the

2 interview given to one paper by Madam del Ponte, where she confirmed that

3 Mr. Mesic was a witness. I believe this is highly relevant. If you have

4 a situation where the person publicly confirms this as a fact and then

5 this very fact is used later on as the basis for an indictment, I believe

6 that this is highly relevant.

7 JUDGE ROBINSON: Mr. Ackerson.

8 Have you concluded, Mr. -- have you concluded, Mr. Krsnik?

9 MR. KRSNIK: [Interpretation] I only wanted to say that these are

10 four short articles that the Prosecutor can fully review in two minutes,

11 if that's the problem.

12 JUDGE ROBINSON: Yes, Mr. Ackerson.

13 MR. ACKERSON: First, Your Honour, the question of relevance I

14 don't think is the appropriate question here. Defence counsel had ample

15 time, including an extra week where he's very lucky his client wasn't

16 issued a Bench warrant but was given a continuance. And he hadn't listed

17 it at the prior trial date, and then he had an additional week and still

18 hadn't listed any of these exhibits. So I would first say that the

19 question of the relevance of the document isn't the primary concern of

20 this Chamber; the primary concern should be fair notice and just -- fair

21 notice to --

22 JUDGE ROBINSON: Yes, but it wouldn't be the first time that a

23 Trial Chamber is faced with an application during a trial from a party to

24 admit a document.

25 MR. ACKERSON: I understand that.

1 JUDGE ROBINSON: It happens all the time. And then the question

2 of relevance is important.

3 MR. ACKERSON: Fair enough. So these documents aren't relevant in

4 this case, except perhaps maybe as mitigating circumstances to sentencing

5 because Trial Chamber I issues an order to the paper and one of the

6 exhibits that you've already admitted has arguments about the previous

7 disclosures, and of course there were previous disclosures. They're part

8 of that exhibit. But it's not up to a newspaper to decide whether or not

9 an order that's directed specifically to them is valid, and that's his

10 argument with these exhibits. So I would say that they should not be

11 admitted in the case in chief of the trial, but they are potentially

12 relevant for sentencing and that's where this Court should consider them.

13 But they can't be relevant as to whether or not he violated a

14 court order. They heard arguments, they heard arguments on these issues.

15 An order was directed directly at the paper, he receives it, he publishes

16 it, he says in the paper that, I've got the order, I'm going to violate it

17 anyways. He then does it 22 straight days. That's the only issue; it's a

18 violation of a court order. And Trial Chamber I had all of the

19 circumstances in front of it when it made the decision to issue the cease

20 and desist order.

21 [Trial Chamber confers]

22 JUDGE ROBINSON: This is the Trial Chamber's decision on your

23 application, Mr. Krsnik. We'll mark the documents for identification.

24 You should present copies to the Prosecutor so he can deal -- so he can

25 see them and examine them. And during the evidence, we'll decide on their

1 admission.

2 MR. KRSNIK: [Interpretation] Thank you, Your Honour.

3 I only wish to say that my health condition is very bad. I have

4 an ear infection, but I didn't allow it to prevent me from appearing here.

5 But please have an understanding for me. It may not have been

6 misinterpretation earlier on; it may just be me not taking things in

7 fully.

8 JUDGE ROBINSON: Well, we appreciate your being here, Mr. Krsnik,

9 and we hope your health will improve.

10 Mr. Krsnik, it's now for you to call your evidence.

11 JUDGE KWON: Is that the only copy which was handed over to the

12 Prosecutor?

13 MR. KRSNIK: [Interpretation] Your Honour, I omitted to say that

14 this is the motion I completed yesterday. I suggested that two witnesses

15 be called, but I knew you were going to be deciding on it proprio motu and

16 that it will be in your hands to decide whether these additional witnesses

17 are to be called or not. They were supposed to merely testify to some

18 matters that the Prosecution presented in their pre-trial brief.

19 But after the presentation of evidence and after we respond to the

20 evidence presented by the Prosecution, we will discuss these further

21 matters. One of the witnesses is the attorney-at-law, he's the public

22 prosecutor, and the other one is the Prime Minister. And they will be

23 examined on whether Mr. Jovic violated the order knowingly and wilfully,

24 whether he was in a position to do that at all.

25 JUDGE ROBINSON: Those witnesses are present?

1 MR. KRSNIK: [Interpretation] Unfortunately they are not, Your

2 Honour.

3 JUDGE ROBINSON: Well, why, Mr. Jovic? The trial is set for

4 today.

5 MR. KRSNIK: [Interpretation] Yes, Your Honour. I'm aware of all

6 the consequences of that. Unfortunately I hesitate to offer any excuses

7 in terms of us not having had enough time. Well, we did not have enough

8 time because of Mr. Jovic's family situation. In the past seven days, I

9 was able to obtain some of the relevant documents with the assistance of

10 my investigators, and that is the reason why I submitted these documents

11 today. However, I believe that Mr. Jovic's examination will show why I

12 suggested that these two witnesses be called and why they should, in fact,

13 testify in the interests of justice. This will also become clear on the

14 basis of the arguments contained in the Prosecution pre-trial brief.

15 [Trial Chamber confers]

16 JUDGE ROBINSON: Mr. Krsnik, we'll hear Mr. Jovic's evidence first

17 and then we'll decide on your application.

18 MR. KRSNIK: [Interpretation] Thank you, Your Honour. I apologise

19 if I'm asking too much, but could we be allowed a short break?

20 JUDGE ROBINSON: Let us carry on. We have lost a lot of time.

21 MR. KRSNIK: [Interpretation] I call Mr. Jovic as a witness.

22 JUDGE ROBINSON: We'll be breaking at half past 9.00, Mr. Krsnik.

23 Yes, let the witness make the declaration.

24 THE WITNESS: [Interpretation] Your Honour, I solemnly declare that

25 I will speak the truth, the whole truth, and nothing but the truth.

1 [Trial Chamber confers]

2 JUDGE ROBINSON: Please proceed.

3 WITNESS: JOSIP JOVIC

4 [Witness answered through interpreter]

5 Examination by Mr. Krsnik:

6 Q. Mr. Jovic, would you please present your CV briefly. I've already

7 cautioned you about answering my questions as briefly and concisely as

8 possible. So could you please let the Honourable Chamber know your

9 personal background.

10 A. I'm 56 years old, and all my career I was a journalist. Most of

11 the time I spent in Slobodna Dalmacija as a political analyst, a

12 commentator, and editor-in-chief in -- on two occasions. I also wrote for

13 other Croatian papers. I published seven books on political matters. I

14 was born in Imotski near Split. I am married with two sons, and I have

15 two daughters-in-law.

16 Q. The second question, let us go into the merits of this case.

17 Would you tell the Trial Chamber how long your newspaper and yourself have

18 been following, as we like to put it, The Hague Tribunal matters and all

19 the cases before it?

20 A. I have to say that we have been following the activities of the

21 Tribunal ever since its inception. Our assessment was that its activities

22 were exceptionally important for our country and the region in general.

23 We knew that whatever pronouncements the Tribunal would make would be very

24 important, not only for the fate of individuals but also for the

25 historical assessments and the people as a whole.

1 JUDGE KWON: Pause, you should give a pause.

2 MR. KRSNIK: [Interpretation]

3 Q. Please take it a bit more slowly.

4 A. Either as a political commentator or as editor-in-chief, I can say

5 that I have been continually following all the matters related to the

6 activities of The Hague Tribunal.

7 Q. Let us go further into the merits of the case. When was the first

8 time that you heard of Mr. Mesic having testified before the Tribunal in

9 one or several cases and what year was that?

10 A. People first started talking about this back in 1997.

11 Q. Slow down, slow down.

12 A. The first time it emerged that he wanted to say something about

13 trials before The Hague Tribunal had to do with his evidence to The Hague

14 investigators. I believe that this information was leaked immediately.

15 Q. Was this statement published in public media, the 1997 statement?

16 A. The statement was published in at least three different newspapers

17 in Croatia in Vjesnik, in Vecernji List, and in Slobodna Dalmacija, and

18 the statement was profusely commented on.

19 Q. My first question, it is your profession, after all, what sort of

20 newspaper is Vecernji List, how many copies then and now? I suppose you

21 still follow that. What sort of political commentary was that, written by

22 whom, and how was this seen in the rest of the media?

23 A. Vecernji List has for years been the most popular and the best

24 selling daily in Croatia. For Croatian standards, the number of copies

25 they print and sell every day is extremely high. The figure lies at about

1 150.000 copies.

2 Q. Daily?

3 A. Yes, that's what I mean, every day. The political commentaries

4 would normally be written by all the editors of all the dailies, and they

5 were all, no exception, extremely critical of Stjepan Mesic's evidence.

6 At the time, nobody had an inkling that he would one day be Croatian

7 president.

8 Q. Would you please be so kind and tell me this: After these

9 comments made in these various newspapers, did Mr. Mesic release any

10 interviews to any of the newspapers about his evidence, about his

11 testimony?

12 A. What I've just said is in relation to the period before he ever

13 came to testify here, at least that was my conclusion.

14 Q. Just a minute. Let me explain. You mean the trial that he

15 testified at, right?

16 A. Yes, that's what I mean, the trial. Soon after he had appeared as

17 a witness before The Hague Tribunal, a mere several months later, there

18 were no longer any secrets about the fact that he had appeared as a

19 witness before a Chamber of The Hague Tribunal, the ICTY. As you have

20 also observed, counsel, he said it himself in the Feral Tribune and

21 Vecernji List, on Croatian TV and radio. He said this unequivocally. He

22 said that he had testified in The Hague. His statement was a

23 contradictory one. The first time he said that he was not a secret

24 witness of any kind. The next time he did say that he was a protected

25 witness and so on and so forth.

1 One thing that was crystal clear is that he had given evidence.

2 His testimony, in part at least, and his identity were published in a

3 number of other media. For example, on the web page of the Veritas

4 documentation centre back in 1999, on the web page of certain news

5 agencies, even on the web page of the London-based Institute for War and

6 Peace.

7 Q. Mr. Jovic --

8 MR. KRSNIK: [Interpretation] Or, rather, if Mr. Usher could place

9 this Feral Tribune piece. Your Honours, my learned friends, this is

10 annex C, Exhibit 1.

11 Q. What I'd like to ask you is: Mr. Mesic testified on the 16th of

12 March, 1998. Can you tell me what the date is on this Feral Tribune

13 interview. Just the first three sentences and the heading, please.

14 A. The heading --

15 Q. The date first, please.

16 A. The 23rd of March, 1998.

17 Q. So this is only --

18 A. Yes, a matter of days after his evidence in The Hague.

19 Q. The heading, please, the first two sentences, if you could please

20 read that out.

21 A. "I testified," says Mesic, "in the case against General Blaskic.

22 I testified about circumstances that I am familiar with, but that I cannot

23 explain further because I promised the president of the Chamber that I

24 would not issue any comments on the course of the trial."

25 Q. Fair enough.

1 MR. KRSNIK: [Interpretation] Your Honours, I believe we have

2 already had all the relevant facts from this newspaper article translated.

3 The next thing is annex D, Exhibit 2, please.

4 Q. If you could please tell the Court what this is about.

5 A. Yes. Well, the headline itself is self-explanatory. It

6 says: "Yes, I testified in the Blaskic case, too."

7 Q. Next, annex E, Exhibit 3. If you could please tell the Court,

8 witness, what this is about. And the dates, please. The dates are very

9 important.

10 A. 21st of March, 1998, again, like the previous piece, 23rd of

11 March. This is a Vjesnik piece. This is not an interview. This is a

12 report in the newspaper itself saying that on that Sunday Stipe Mesic

13 confirmed to the Croatian TV that he had during the previous week

14 testified as a Prosecution witness in the case against General Tihomir

15 Blaskic. Among other things, he spoke about an opinion offered by Ante

16 Nobilo, Blaskic's counsel, saying that his testimony put the Defence in a

17 very difficult position. This may lead one to conclude that Blaskic's

18 counsel himself, Ante Nobilo, also published the fact that Mesic was

19 protected witness, by saying, as we see, that it was Mesic's testimony

20 that left the Defence in a very difficult situation.

21 Q. The last piece, the first sentence of the heading, annex F,

22 Exhibit 4, what's this about?

23 A. This is a later piece dated the 7th of April, 2000.

24 Q. Well, that was certainly before Slobodna ever -- right?

25 A. Yes, this is a brief interview with the Chief Prosecutor of the

1 ICTY, Madam Carla del Ponte. In this interview she says -- or rather,

2 this interview was published a little after Mesic became Croatian

3 president --

4 JUDGE BONOMY: Which --

5 THE WITNESS: [Interpretation] Carla del Ponte --

6 JUDGE BONOMY: Which document is this? I've only been given four

7 that are all dated the 23rd of March, 1998. Is there a fifth one?

8 MR. KRSNIK: [Interpretation] Your Honours, let me check this.

9 Your Honours, the mistake is ours. We wrote "Exhibit 4" and we

10 said this was the 23rd. However, this is Jutarnji List and the date is

11 the 7th of April, 2000. This is an important Croatian daily, Jutarnji

12 List, selling over 100.000 copies. I think the interpretation is clear

13 but that was our mistake. The error -- the original error was made in the

14 annex. Our note was erroneous, for which I apologise.

15 THE WITNESS: [Interpretation] I would like to quote the following

16 sentence from her interview. She says: "President Mesic is a friend of

17 the Court" --

18 JUDGE ROBINSON: Mr. Ackerson is on his feet.

19 MR. ACKERSON: I understand that Defence counsel said that he had

20 time to get translations of these. I have not been provided with that.

21 Is there a translation?

22 JUDGE KWON: Second page of English on the top. "The Hague

23 Prosecutor didn't want to comment on Blewitt's statement on secret

24 indictments for Oluja. President Mesic is a big friend of Court." I

25 can't read further.

1 JUDGE ROBINSON: Do you have that, Mr. Ackerson?

2 MR. ACKERSON: If I could have a moment, Your Honour, just to kind

3 of sort through the papers.

4 JUDGE KWON: Second page in English.

5 MR. ACKERSON: I do have it. I would like to point out, however,

6 one of the arguments Defence counsel is making is that he didn't have

7 enough time in order to prepare an exhibit or witness list, but clearly he

8 had time enough to get a translation. I just want to make that point

9 obvious to the Court.

10 JUDGE ROBINSON: Yes, Mr. Krsnik.

11 MR. KRSNIK: [Interpretation] I will not grace that with an answer.

12 Mr. Prosecutor knows full well that I can't even appear at this Tribunal

13 if I don't have all the relevant translations, so that was obviously our

14 priority.

15 THE WITNESS: [Interpretation] Can I go on now?

16 MR. KRSNIK: [Interpretation]

17 Q. Yes, please.

18 A. "Carla del Ponte claims Mesic was an important witness at one of

19 our trials. He knows a great deal and it was wonderful talking to him."

20 If you look at the overall context, it is clear that the Chief

21 Prosecutor has the Blaskic trial in mind --

22 JUDGE BONOMY: I'm sorry, I'm struggling to find this in the

23 English. Where is this in the English? All I have is a suggestion that

24 the Deputy Prosecutor had said that Mesic is a big friend of the Court,

25 that she repeated that there were no secret indictments.

1 MR. KRSNIK: [Interpretation] Maybe it wasn't translated.

2 JUDGE BONOMY: Well, it's good enough if it's translated -- it's

3 not much use to me if it's not translated. I'm sorry, I haven't developed

4 a facility for the Croatian language as yet.

5 MR. KRSNIK: [Interpretation] Your Honour, that is the least of our

6 problems. We have the original here. We can give it to the interpreters.

7 They are here, after all. We're only looking at two sentences. We all

8 have the Croatian original --

9 JUDGE BONOMY: No, no, I apologise, Mr. Krsnik. I have actually

10 found it. Thank you.

11 [Trial Chamber confers]

12 THE WITNESS: [Interpretation] This is the lower half of the page.

13 JUDGE KWON: English page seems to have a problem with right

14 margin. It does not show all the full line of the right margin.

15 MR. KRSNIK: [Interpretation] That's right, Your Honour. Even if

16 you look at the original, the newspaper article, it's not very easy to

17 read, is it?

18 JUDGE KWON: So you downloaded this English page from web page?

19 MR. KRSNIK: [Microphone not activated].

20 JUDGE KWON: Microphone.

21 MR. KRSNIK: Sorry.

22 [Interpretation] There's a portion of the text missing, that's the

23 Vjesnik article, but here we have the whole article and the translation.

24 And the bit that you were inquiring about is also missing, but I do not

25 believe that the part read out by Mr. Jovic is missing; I think that has

1 been translated in its entirety. It's halfway down the page in the

2 Croatian and it's missing, so we couldn't have translated that into

3 English. We translated what we received.

4 JUDGE ROBINSON: Please continue.

5 MR. KRSNIK: Thank you.

6 Q. [Interpretation] Mr. Jovic, by the time this interview with Carla

7 del Ponte was published, how long had Mr. Mesic been president for?

8 A. For about three months.

9 Q. Thank you. Sorry?

10 A. I think he became president in January 2000 or possibly somewhat

11 later.

12 Q. Let's move on to our main point. Can you please tell the Court

13 when you, your own newspaper, or your board of editors, or your team of

14 investigators, if you had one or set up one as part of your board of

15 editors, I mean a team of investigative journalists -- so when did you

16 first come across relevant documents pertinent to this trial or some

17 other?

18 A. It was during the election campaign when Mesic decided to run for

19 president. He was overwhelmed with questions by journalists, by members

20 of the public, various meetings. People wanted to know whether it was

21 true that he had appeared as a witness against Tihomir Blaskic.

22 Q. I'm sorry for interrupting. You've been a journalist for over 30

23 years now. Is this good copy, as you journalists like to say? Is this

24 something that was a subject of great interest at the time?

25 A. Yes, and it became even more interesting once Mr. Mesic had won

1 the trust of the voters, he won the elections and became Croatia's

2 president. Once he was elected, I as the editor-in-chief was suddenly in

3 possession of what you define as great copy.

4 Q. I called it great copy. This is journalese. I understand this is

5 the term that you journalists use, right?

6 A. I received a set of three CDs. When we opened the parcel, we

7 realised one of these was in Croatian and it was Stjepan Mesic's testimony

8 in the Blaskic case. A second CD was the same thing in English. And a

9 third CD contained the web page that you spoke about, the ICTY web page

10 displaying information on a session where it was decided that Mesic would

11 be awarded the status of a protected witness.

12 Q. So the third CD was what I precisely talked to the Court about,

13 that was from the web page, from the official web page, of this Tribunal

14 with this session with Judge Jorda presiding. The discussion was whether

15 Mesic should be granted protective measures or not, right?

16 A. Yes.

17 Q. That was the third one?

18 A. Yes.

19 Q. Would you please tell the Court how this reached you. How does

20 stuff reach you, journalists, in general?

21 A. In a wide variety of ways. This particular parcel was addressed

22 to the editor-in-chief and left Slobodna Dalmacija's reception. First it

23 reached our porter, who gave it to my secretary, who left it on my table.

24 And this is very often the case. This is normally how things reached me.

25 There's no particular procedure.

1 JUDGE BONOMY: Can we clarify when this was?

2 MR. KRSNIK: [Interpretation] That was my next question.

3 THE WITNESS: [Interpretation] This was in January, possibly

4 February, 2000. I'm afraid I can't be more specific.

5 MR. KRSNIK: [Interpretation]

6 Q. Just one further clarification, please. Is this the established

7 practice, for interested parties or citizens to send you anonymous parcels

8 for you to publish?

9 A. Yes, this is quite usual, especially when we're talking about

10 things of great import. People don't know about this and they want to

11 publish information on the one hand and keep the source secret on the

12 other.

13 Q. All right. Let's move on to the main point. You told the

14 Honourable Judge Bonomy that this was in January and February 2000. The

15 first article appeared on the 29th of November, if I'm not mistaken. Why

16 the ten-month time-lag?

17 A. We had been thinking about this, pondering the possibility of

18 publishing it for months, whether to publish and in what form.

19 Q. Why was that? Why did it take you that long?

20 A. Well, first of all, we weren't sure about the authenticity of the

21 documents that we received. In the meantime, we had realised that some

22 other newspapers, especially the newspaper that I had mentioned at the

23 outset, had published certain portions that we had.

24 Q. Let's try to keep this crystal clear. Let's try to clarify this.

25 First you said you weren't sure whether the documents were authentic,

1 right?

2 A. Yes, that's true.

3 Q. Was there any way for you to check the authenticity of the

4 documents received?

5 A. The web page, the ICTY web page, was easy, because our own team of

6 investigators was searching through the official web pages and they had

7 already found the same document, which they saved on their own hard disk.

8 Q. Your investigators monitoring the work of the Tribunal, right, and

9 their web pages?

10 A. Yes, that's right.

11 JUDGE KWON: [Previous translation continues] ... can I ask

12 whether you are going to come to the fact whether the accused, Mr. Jovic,

13 still keeps those three CDs, whether he has it with him now.

14 MR. KRSNIK: [Interpretation] By all means, Your Honour. This is

15 definitely something that requires clarification.

16 Q. Mr. Jovic, you see what the Chamber is interested in. I'm

17 following the transcript, and whenever it seems to me that things are not

18 clear, I press for further clarification.

19 But before you answer this one, let's not forget about this. What

20 I showed you today from the session presided by Judge Claude Jorda, the P7

21 that I showed you, Exhibit P7, is my understanding correct that your team

22 of investigators found this same document? It was on your hard disk, and

23 it was something that was downloaded from the official web page of this

24 Tribunal?

25 A. Yes, the self same thing, that's what I was trying to say all

1 along.

2 Q. Now about Judge Kwon's question. The CDs, do you have those?

3 What became of those? Tell us everything you know.

4 A. I think copies were made of those. I don't have them in my

5 possession. I didn't believe it would be necessary to bring them here,

6 but I believe that they should be somewhere back home. I should have them

7 somewhere in my files.

8 Q. Could you send these to the Tribunal, should the Chamber so

9 require?

10 A. No problem at all.

11 MR. KRSNIK: [Interpretation] Your Honours, it's half past 9.00. I

12 think it's probably a good time for a break.

13 THE WITNESS: [Interpretation] If I may just be allowed to complete

14 this.

15 [Trial Chamber confers]

16 JUDGE BONOMY: Mr. Ackerson, there are two matters that have been

17 raised there that, it seems to me, should be capable of being verified.

18 One is whether the Prosecutor did make public statements in 1998 about

19 Mesic being a witness. The relevance of that to the later order is

20 another matter, but it may be relevant to question of the closed session

21 order. And the second thing that should be capable of verification is

22 whether there was on a publicly accessible web site a transcript of his --

23 of the evidence -- or at least a transcript that indicates that Mesic was

24 a witness here.

25 And both of these tie in, in a sense, with a thing that's

1 concerned me in this case, which is why nothing was done to draw this

2 matter to the attention of the Trial Chamber when it was happening, why

3 there was a great delay in raising this as a -- as an issue of contempt in

4 relation to this particular accused. And I wonder if there is a

5 relationship between these factors. I'm now beginning to question, in

6 fact, whether the information had, in fact, been released publicly,

7 whether inadvertently or not. And one has to ask whether that's why there

8 was a delay in dealing with it.

9 MR. ACKERSON: I'm happy to respond now to that question, Your

10 Honour. It's up to you.

11 JUDGE BONOMY: Yeah, but -- is that in the context of checking the

12 other two matters which --

13 MR. ACKERSON: I can actually respond presuming that those things

14 are true, because I think the argument doesn't change that much,

15 particularly with -- starting with --

16 JUDGE BONOMY: I would rather hear you later. I'm just mentioning

17 the link and suggesting that you do check the other two matters to see if

18 in fact we can cut through this and find out what the facts are much more

19 quickly than it's likely to take by this exercise.

20 MR. ACKERSON: Right. I will -- over the break I will verify the

21 assertions that are made by Defence counsel, but I do want to leave you

22 with one clear assertion which is that no one -- none of these allegations

23 none of these publications are asserting -- even on the web page of the

24 ICTY are asserting that the content of Mesic's testimony was ever

25 published. What they're talking about only is the discussions that were

1 made regarding whether or not it should occur in closed session.

2 JUDGE BONOMY: But you immediately see the public interest issue

3 that here's a man who's prepared to say: I'm not a secret witness at all,

4 but then to hide behind an order while at the same time flaunting his

5 identity as a witness. There's an issue to be addressed in relation to

6 that, I think.

7 MR. ACKERSON: Well, I think that's -- I would disagree with that

8 interpretation, and I think we should address that after the break. But I

9 will -- I will attempt to verify both of those items.

10 JUDGE ROBINSON: Yes, Mr. Krsnik.

11 MR. KRSNIK: [Interpretation] Just briefly, Your Honour.

12 I said this at the outset. Exhibit P7 was tendered by the OTP.

13 They believed it to be very important evidence. They claim that this was

14 the final proof that the session was closed and that Mesic was granted

15 protective measures, yet at the same time all of this was published on the

16 internet.

17 I apologise to my learned friend, but I don't think his answer was

18 truthful. He used the very same document to persuade the Court or the

19 Chamber of a totally opposite position.

20 Thank you.

21 JUDGE ROBINSON: We'll adjourn for half an hour.

22 --- Recess taken at 9.33 a.m.

23 --- On resuming at 10.04 a.m.

24 JUDGE ROBINSON: Mr. Krsnik, please continue.

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

1 Q. Mr. Jovic, let us move on to disclosure now. Let me repeat the

2 question. Why did you wait for nine months before publishing and what

3 were the reasons behind your decision to publish what you indeed

4 published?

5 A. I decided to publish these documents at the time when they became

6 an open secret, as it were. I had information that numerous papers were

7 in possession of these documents, and it became a matter of professional

8 competition as to who was to be the first one to publish them. Before my

9 paper, the weekly Globus, started publishing the documents. We, as a

10 daily newspaper, were able to take it more quickly.

11 Q. Could you please explain for the Trial Chamber what the weekly

12 paper, Globus, is and how widely it is published?

13 A. For years Globus has been the most widely read political weekly in

14 Croatia, publishing between 50.000 to 100.000 copies.

15 Q. And how often is it published?

16 A. Once weekly.

17 Q. Were they the first ones to publish the testimony of Mr. Mesic?

18 A. They were the first one.

19 Q. You said nevertheless that you had the advantage over them. Was

20 it because you were able to publish the transcripts every day and they

21 were only able to do it once weekly?

22 A. Yes, we were able to do it every day.

23 Q. Was that the main reason why you decided to publish the documents?

24 Did you compare the documents published by Globus with the material you

25 had?

1 A. Naturally. At first glance it was obvious that these were the

2 self same documents. In addition to that, the identity of the protected

3 witness was, by that time, widely known, as we have already shown. In

4 these transcripts, Mesic was actually repeating what had already been

5 stated in the investigative stage.

6 Q. Very well.

7 MR. KRSNIK: [Interpretation] I would kindly ask the usher to place

8 before the witness Prosecution Exhibit 11, tab 1 -- or rather, tab 2.

9 Your Honours, you have a full translation of the document in the

10 first binder, tab 2.

11 Q. Would you please turn to tab 2. The title of the text is "Tudjman

12 and Milosevic agreed on the division." Do you have that?

13 A. Yes, I do.

14 Q. Would you be so kind --

15 [Trial Chamber confers]

16 MR. KRSNIK: Your Honour, you have the pages in this big exhibit,

17 Exhibit 11, tab number 2. And then you have all -- all translations you

18 have it as pages number 4.

19 JUDGE KWON: Yes, we found the copy. Thank you.

20 MR. KRSNIK: [Interpretation]

21 Q. Would you be so kind as to read the title of this other text on

22 the same page, the last text, Stjepan Mesic in a TV show. Do you see

23 that? Have you found that? Would you please read this subheading fully

24 and could you state the date when this was said.

25 A. The date is the 28th of November, the year 2000, where President

1 Mesic states: "Slobodna Dalmacija has published something that actually

2 suits me, provided they stay away from fabrications."

3 Q. Carry on.

4 A. "If, however, they engage in fabrications, only The Hague can put

5 a stop to it. And as for who gave this statement to Slobodna Dalmacija, I

6 will issue a public announcement soon, said Mesic."

7 Q. Where did he say that?

8 A. According to Slobodna Dalmacija dated 28th November, he stated

9 this in a TV show. This was an additional reason why we decided to

10 publish this because the witness himself said that it suited him, of

11 course provided that the transcripts are authentic. And based on what he

12 says, one can conclude that he knows who the primary source of the

13 transcripts is.

14 THE INTERPRETER: Interpreter's correction, not a TV show but a

15 radio show.

16 MR. KRSNIK: [Interpretation]

17 Q. Who knows?

18 A. That Mesic knows who the primary source of the transcripts is.

19 Q. Very well.

20 MR. KRSNIK: [Interpretation] Could we set these documents aside.

21 We will need them later on.

22 Q. Can you tell us when you received the order and what happened

23 next. How did the order arrive? How did you receive it? What happened?

24 A. The situation is not as simple as Mr. Prosecutor explained it.

25 Truth to tell, I received the order on the 1st of December, 2000 through a

1 fax machine. We did not wish to disregard the order and what happened

2 cannot be described as disregard for the Tribunal or as contempt of

3 Tribunal.

4 Q. Pause there. Did you stop publishing the documents -- but please

5 wait for me to finish my question so that the Trial Chamber can follow.

6 You said that you received the order in the form of a facsimile on the 1st

7 of December. Did you stop publishing the documents upon receiving the

8 order or did you not? What happened next? If you did stop publishing the

9 documents, why did you do that?

10 A. This is what I wanted to say, precisely, that we stopped

11 publishing the documents in order to obtain the legal opinion in the

12 Republic of Croatia and to decide, based on that legal opinion, whether we

13 should feel bound by the order. As we had already started publishing the

14 transcripts, it was difficult to stop publishing them, to make a pause.

15 We informed the legal office of our paper and we also sent an inquiry to

16 the general attorney's office. They had also received the order.

17 Q. You want to say that the order was also sent to the public

18 prosecutor's office in Croatia?

19 A. Yes, and to the Ministry of Justice as well. The public

20 prosecutor's office or the general attorney's office produced a written

21 statement in reaction to that order wherein they established that the

22 protective measures involved were addressed at the identity of the witness

23 only and not at the contents of his testimony. They concluded that

24 Slobodna Dalmacija had not violated these orders by publishing the

25 transcripts, and that the identity of the protected witness had been

1 revealed countless times by the witness himself. These were findings of

2 the public prosecutor's office.

3 Q. Which one?

4 A. The public prosecutor's office in Split.

5 Q. Therefore of the Republic of Croatia?

6 A. Yes.

7 Q. Did you seek their opinion and did you ask for a written document

8 to be produced?

9 A. Yes, I spoke with the municipal -- or rather, the public

10 prosecutor in Split, who told me -- or rather, later on I found out that

11 he had notified the main public prosecutor's office, that's to say of the

12 Republic of Croatia, of this case. And among the -- those who were

13 supposed to receive a copy was also the authority issuing the order.

14 Q. You mean this Tribunal?

15 A. Yes.

16 Q. Do you have that document and can you present the Trial Chamber

17 with it?

18 A. I was looking for the document, but I managed to obtain only one

19 page of it. As I was not able to obtain the document in its entirety, I

20 did not bring it along. But I believe that by producing an order this

21 Trial Chamber could easily get hold of the document. I only have its

22 reference number.

23 Q. Could you give its reference number for the benefit of the Trial

24 Chamber?

25 A. I enclosed it there --

1 JUDGE BONOMY: Give us the page you've got. Have we got the page

2 that you're referring to?

3 MR. KRSNIK: [Interpretation] No.

4 THE WITNESS: [Interpretation] No, I don't have it here. I have it

5 at home.

6 JUDGE BONOMY: Why?

7 MR. KRSNIK: [Interpretation] Because this is not the document in

8 its entirety. Perhaps I'm mistaken. I'm not a good attorney-at-law.

9 This Tribunal has never accepted partial documents, only documents in

10 their entirety. I may have been wrong, but this was my experience before

11 this Tribunal. The document exists in the file of the public prosecutor's

12 office .

13 JUDGE BONOMY: Mr. Krsnik, if you had any part of it you would

14 expect it to be brought in at least a brief-case to the Tribunal.

15 As you know, we were trying to have this case heard in the course

16 of a day to cause as little inconvenience as possible to your client. And

17 you seem intent upon causing him -- or he himself seems intent upon

18 causing himself the maximum inconvenience.

19 MR. KRSNIK: [Interpretation] Your Honour, I was not aware of the

20 existence of this -- or rather, of the fact that this document was in

21 possession of the witness. Had I known this, I would have brought it

22 along, undoubtedly.

23 As my client, Mr. Jovic, explained, he only had one out of five

24 pages. He believed that in the form that he had it, the document was not

25 relevant and he informed me of it only recently. But the document must be

1 in possession of the public prosecutor's office and in possession of

2 the ICTY.

3 The reference number of the document is D-3-1/14814 ter. In this

4 document, they state that Mr. Jovic was free to continue publishing this,

5 and this was the position of the public prosecutor's office.

6 THE WITNESS: [Interpretation] Yes, and the date was the 4th of

7 December, 2000.

8 MR. KRSNIK: [Interpretation]

9 Q. In addition to the public prosecutor's office, did you consult

10 anyone else?

11 A. We were seeking ...

12 [Trial Chamber confers]

13 JUDGE ROBINSON: Mr. Ackerson, can you help us in tracking down

14 this document?

15 MR. ACKERSON: [Microphone not activated].

16 I mean, I can make attempts to do that, but one of the problems,

17 you know, with adding documents without notice is I don't have a chance to

18 verify. I don't know if this document exists. We are adducing evidence

19 about a document that's not in front of the Court. We have no idea of its

20 authenticity. The public prosecutor's office, I mean, I can attempt to do

21 that but I have no clue whether it actually exists.

22 JUDGE ROBINSON: I know you have no clue, but it would assist us

23 if you can, because counsel says that he thinks it's in the -- that your

24 office may have a copy of it.

25 MR. ACKERSON: I will attempt to do that, Your

1 Honour, but I would submit anyways it's irrelevant because --

2 JUDGE ROBINSON: I'm not sure it's irrelevant. It may go to the

3 issue of mens rea and intent. We're not deciding that now.

4 MR. ACKERSON: Well, we're actually deciding on the probative

5 value and the relevance of a document because you have to make that

6 determination whether to admit it without it being listed as an exhibit,

7 and that is the basis that the Court is deciding these decisions on. I

8 mean, I can just tell you that you could give any number of legal opinions

9 from any variety of sources, but the fact is you, this Trial Chamber,

10 issued an order, and he's not entitled to get an opinion from Greenland or

11 the United States or anywhere else to say that that's wrong. Right? He

12 has -- if this Tribunal has the authority to issue this order, that has to

13 be respected on its face. And what you're entertaining, I would submit,

14 Your Honour, is that he has a right to get a second opinion from another

15 legal entity to question the validity of your court orders, and that can't

16 be. And so I would say it's irrelevant. I would say it's irrelevant and

17 it's not probative of an issue in this trial.

18 MR. KRSNIK: [Interpretation] Your Honour, if I may be allowed.

19 JUDGE ROBINSON: Yes.

20 MR. KRSNIK: [Interpretation] I really don't understand the point

21 the Prosecutor is trying to make. This is not true. For the Republic of

22 Croatia to be able to cooperate with the ICTY, it had to pass a

23 constitutional law to that effect, and that also applies to any country in

24 the world. The constitutional law provides specifically for the

25 cooperation between Croatia and the ICTY, and this was done by Italy,

1 France and a number of other countries, except for the United States, who

2 refuse even to recognise the ICC. And it will be interesting to see if

3 such an order were to be addressed to the United States what their

4 response to that would be.

5 Therefore, it is highly relevant for every citizen of the Republic

6 of Croatia to inquire with the relevant institutions, which Mr. Jovic did.

7 He addressed the public prosecutor's office in charge of prosecution in

8 that country, to which this Tribunal sent an order to take certain steps.

9 And this particular institution says that it cannot take any steps because

10 Mr. Jovic is not engaging in any criminal activity. And this position is

11 also notified to Mr. Jovic. According to our information, the same piece

12 of information, the same document, was sent to the ICTY and it has to be

13 here. That was why I invited that municipal public prosecutor to come

14 before the Tribunal as a witness and confirm this.

15 JUDGE ROBINSON: Just a minute, Mr. Krsnik.

16 [Trial Chamber confers]

17 JUDGE ROBINSON: Proceed, Mr. Krsnik. We'll not make any

18 determination on that at this stage.

19 MR. KRSNIK: [Interpretation]

20 Q. Mr. Jovic, did you apply to the public prosecutor's office only or

21 did you approach any other institutions?

22 THE INTERPRETER: The witness's microphone is ...

23 THE WITNESS: [Interpretation] We also sought the opinion of the

24 government of the Republic of Croatia. The government stated that as far

25 as this case involving the issuance of the order was concerned, the public

1 prosecutor's office was competent to deal with this. The then-Deputy

2 Prime Minister and the head of the office of the Republic of Croatia for

3 Cooperation with ICTY, Mr. Goran Granic, stated that this was not the

4 matter within the jurisdiction of the ICTY and that the general public was

5 entitled to know it all.

6 To me, as a professional, the position of my professional

7 association, the Croatian Society of Journalists, is also relevant. The

8 association, having met -- or rather, its main board having met decided

9 that this was the case of censorship of the media and that the public is

10 entitled to know every single piece of information.

11 As I said, Mr. Mesic himself stated that he was going to ask for

12 the protective measures to be lifted and that he was not opposed in any

13 way to the publication of these transcripts. These positions faced me

14 with a dilemma as to whether to stop publishing the documents or not, and

15 ultimately I made the choice I did, the reasons for which I conveyed in

16 the heading that was quoted by the Prosecutor himself.

17 Q. You have P11 before you, Mr. Jovic --

18 JUDGE BONOMY: Just a moment.

19 Did you, Mr. Jovic, publish in December as a reason for publishing

20 the articles the terms of the legal advice and the government comment that

21 you've just referred to?

22 MR. KRSNIK: Yes.

23 JUDGE BONOMY: And please let the witness answer the question

24 rather than you, Mr. Krsnik.

25 THE WITNESS: [Interpretation] We did not directly state that as

1 the reason for publishing the transcripts, but we were taking account of

2 this, by all means, when deciding to carry on publishing the documents.

3 JUDGE BONOMY: And secondly, did you publish as a reason for

4 publishing the evidence the fact that Mr. Mesic said that he was going to

5 ask for the measures to be lifted and that he had no objection to their

6 publication?

7 THE WITNESS: [Interpretation] I think so. I think this was

8 clearly indicated as one of our reasons to publish these transcripts.

9 JUDGE BONOMY: No doubt Mr. Krsnik will draw your attention to the

10 passages that make that clear.

11 JUDGE ROBINSON: Did you establish, Mr. Krsnik, how long after the

12 advice from the prosecutor's office was the publication made?

13 MR. KRSNIK: [Interpretation] Six days. Six days later. I've all

14 the evidence. This is part of the Exhibit 11.

15 JUDGE ROBINSON: [Previous translation continues] ... for the

16 witness to give that evidence.

17 MR. KRSNIK: [Interpretation] I was just about to embark on all

18 this evidence contained in Exhibit 11. It says that everything was

19 published. The government's position, Goran Granic's position, Mesic's

20 testimony, the reasons for publishing it, it's all right there. I was

21 just about to take that up. By your leave, I would like to embark on

22 Exhibit 11, tab 8.

23 Q. Have you got that, sir? I just want tab 8.

24 JUDGE ROBINSON: Yes, Mr. Ackerson.

25 MR. ACKERSON: Just while we have this break, I just wanted to

1 make sure that the record is clear that I'm objecting to the testimony

2 that's being adduced to this information, the documents that we're

3 referring to which are not in front of this Court, on the basis, first of

4 all, that they were not provided to the Prosecution beforehand; secondly,

5 on my previous relevance arguments, but I didn't object as we -- each time

6 a question was asked because it would be tedious, but I just want to make

7 the record clear that I'm objecting to the whole issue that we're adducing

8 evidence on.

9 Thanks.

10 JUDGE ROBINSON: Yes. Thank you.

11 MR. KRSNIK: [Interpretation] Your Honours, this is evidence

12 admitted by the Court. I'm just using it. It's been admitted. It's

13 nothing new, really.

14 Q. Mr. Jovic, do you see your own piece, which you signed as Josip

15 Jovic, editor-in-chief?

16 A. Yes.

17 MR. KRSNIK: [Interpretation] Your Honours, you will see that only

18 a small portion of it has been translated. I'm not sure if we have a full

19 translation. Yes.

20 Q. Sir, were all the reasons explained here, the reasons that Judge

21 Bonomy was just asking you about?

22 A. Well, the principal reasons anyway. You see those six items.

23 JUDGE BONOMY: Is this the publication of the 6th of December?

24 MR. KRSNIK: [Interpretation] Yes.

25 JUDGE BONOMY: And this is the one that says clearly that you know

1 that you're breaking an order of the Tribunal. It says: "Viewed from a

2 legal point of view, this Tribunal has the competence for such conduct."

3 That's the one we're looking at, is it?

4 MR. KRSNIK: [Interpretation] Yes, yes. That's a small portion

5 that's been translated, but you have a full translation of another piece

6 where Mr. Jovic explains --

7 JUDGE BONOMY: But it shows clearly that he understands that the

8 Tribunal has authority, has made a competent order, and he's defying it.

9 MR. KRSNIK: [Interpretation] That's not the way I see it, Your

10 Honour. All it says is that there's a certain amount of risk involved,

11 but after all the advice that he had obtained - and he goes on to explain

12 this - despite the risk, despite the possible risk, he still decides to go

13 ahead and publish it, and you have the six items there, the reasons why.

14 JUDGE BONOMY: And you're going to show that one of them refers to

15 the advice he's got?

16 JUDGE KWON: In English page I can note Josipovic's opinion and

17 Granic's comment are all there in volume 1, binder 1, Exhibit 11, tab 8,

18 we have English translation.

19 MR. KRSNIK: [Interpretation] That's right, quite right. I wanted

20 to tackle one thing at a time, but I was waiting for your questions. All

21 these opinions were published, the opinion of the government, the opinion

22 of the Deputy Prime Minister, the opinion of the Professor Josipovic. All

23 these were published beforehand. Eventually Jovic used all these and

24 summed them up in his six points.

25 JUDGE BONOMY: Well, I would like to be directed to the part

1 which -- so that I'm clear in my mind about these various -- where does

2 Granic say: This is not a matter for the ICTY?

3 MR. KRSNIK: [Interpretation] I'm at it, Your Honour. I'm at it.

4 This is Exhibit 11, tab 7.

5 JUDGE BONOMY: I've got the document. Show me the passage.

6 MR. KRSNIK: [Interpretation] "The public has the right to know

7 everything. This has nothing to do with The Hague."

8 JUDGE ROBINSON: What page?

9 MR. KRSNIK: Just a moment.

10 JUDGE KWON: [Microphone not activated].

11 Is it not one of the titles, Mr. Krsnik?

12 MR. KRSNIK: Yes, yes.

13 [Interpretation] Yes, yes.

14 [In English] And then --

15 [Interpretation] No, that's the actual headline, the title.

16 JUDGE BONOMY: I've got the --

17 JUDGE ROBINSON: Just -- you must ensure that the Chamber is

18 following your evidence.

19 MR. KRSNIK: [Interpretation] Clear enough. Needless to say --

20 [Trial Chamber confers]

21 JUDGE BONOMY: We're on tab 8. We're on the 6th of December, I

22 thought. Are we now on the 5th of December?

23 MR. KRSNIK: [Interpretation] No. Now we're on the 5th of

24 December.

25 [Trial Chamber confers]

1 JUDGE BONOMY: We're looking for something which expresses a legal

2 opinion, I thought. That's what I'm looking for. I mean, I don't want

3 this man's assertions about not liking The Hague. I want to know where is

4 this legal opinion that's referred to.

5 MR. ACKERSON: I can --

6 JUDGE ROBINSON: Yes, Mr. Ackerson.

7 MR. ACKERSON: If I can just assist the Court.

8 In tab 7, there's -- there's a one-page English translation of the

9 cover and then the very next page, which is a five-page English

10 translation, there is an article by Mr. Granic and he does express a

11 number of legal opinions, starting on -- and it's at the bottom

12 marked "page 1 of 5." It's at the top marked ET0465-8075, 1 of 5.

13 JUDGE BONOMY: And what's the opinion he's expressing?

14 MR. ACKERSON: Well, I would direct your attention to the middle

15 paragraph that starts with: "President Stipe Mesic didn't ask The Hague

16 Tribunal for any protection," including with the sentence where he

17 says: "However, as a protected witness he is not allowed to talk about

18 his testimony in public."

19 That's the opinion expressed by Mr. Granic in this article.

20 MR. KRSNIK: [Interpretation] Not only that. He goes on to say

21 that Mr. Mesic has nothing against his testimony being published. That's

22 what Goran Granic claims.

23 Jim Landale, the spokesperson for this Tribunal, in that same

24 piece in fact, claims that the order is a warning about a possible

25 violation; a warning, nothing more. That's what Jim Landale says, because

1 he was contacted, too, the journalists did. And then in the same piece

2 you have the Croatian Journalists' Society. This is in one of the boxes.

3 The editorial board of the Croatian Journalists' Association met on

4 Wednesday or will meet on Wednesday and will publish an announcement.

5 That's what Mr. Jovic referred to a while ago. Goran Granic's principal

6 thoughts are very clear. "President Stipe Mesic did not require any sort

7 of protection from the ICTY. He has nothing against his testimony before

8 the Tribunal being made public."

9 Q. Go ahead and read it. Turn your mic on, please.

10 A. Granic's statement, the second-to-last passage: "The publishing

11 of transcripts is not something for The Hague Tribunal to decide on. I

12 don't know why the Tribunal puts itself in that sort of situation. Now

13 that the whole thing's become public, though, the best course of action

14 would be to allow the public to inspect everything."

15 And I must say, Goran Granic is not just anybody. He is the

16 number one person in Croatia at the time for cooperation with the

17 Tribunal.

18 Q. What about his position?

19 A. He was the Deputy Prime Minister and the head of Croatia's

20 government office for cooperation with the ICTY.

21 Q. Can we please now move on to the government announcement. This is

22 Exhibit 11, tab 10. What does the Croatian government say on the 8th of

23 December, 2000? There's just a headline; unfortunately, we don't have the

24 main body of the piece.

25 What did the Croatian government say? Who was in charge of

1 deciding on Slobodna Dalmacija and the pieces it published?

2 MR. KRSNIK: [Interpretation] Your Honours, that is the front page.

3 There's this heading in a grey box: "Government communique upon receiving

4 order from The Hague Chamber." There's a translation of that.

5 It says: "The public prosecutor has jurisdiction over anything

6 published in Slobodna Dalmacija."

7 This is very concise and, above all, crystal clear.

8 MR. ACKERSON: Sorry, Your Honours, I can't find this particular

9 passage that counsel has referred to. If he could direct me.

10 MR. KRSNIK: [Interpretation] It's right here. It's Exhibit 10,

11 the translation is right there. Exhibit 11, tab 10. The heading is here

12 and the translation is right here. You have the translation right there.

13 There's no need for you to go through the binders. Exhibit 11, tab 10,

14 the box right there and the translation next to it.

15 JUDGE ROBINSON: [Microphone not activated].

16 MR. KRSNIK: Date is 8th of -- December 8th, 2000.

17 JUDGE KWON: So you are referring to the passage which

18 says: "Government issues statement following the order of the Trial

19 Chamber"?

20 MR. KRSNIK: [Interpretation] Yes, yes.

21 [In English] "State attorney's office has jurisdiction over the

22 articles in Slobodna Dalmacija."

23 JUDGE BONOMY: That's stating the obvious, if I may say so. It

24 doesn't follow, for a minute, from that that the Tribunal here doesn't

25 have jurisdiction.

1 MR. KRSNIK: [Interpretation] My apologies, Judge Bonomy. Don't

2 get me wrong. It's precisely the opposite. It's not The Hague that has

3 jurisdiction over that; the conclusion is different. It's the state

4 attorney of the Republic of Croatia; they are supposed to grant

5 permission, and they published their own position. They clearly said that

6 Mr. Jovic was not in violation of any law in the Republic of Croatia and

7 that he was free to go on publishing those. And that's what we said

8 earlier.

9 JUDGE BONOMY: That may well be an accurate statement of their

10 view of the rule in Croatia, but we are talking about a Tribunal here with

11 international jurisdiction, whose orders have been defied. And there's no

12 reason why more than one court in the world can't have jurisdiction over

13 an issue. The statement that Croatia has jurisdiction doesn't imply that

14 this Tribunal has no jurisdiction.

15 MR. KRSNIK: [Interpretation] Yes, but it must be a knowing

16 violation. Mr. Jovic is a journalist; he's not a lawyer. That's why he

17 asked around. He did his best. He refrained from publishing for six

18 days. He asked around and everybody was telling him that there was no

19 violation at all. If he'd been told that he was in violation, he wouldn't

20 have published, but the public prosecutor told him he was not in breach of

21 any laws or regulations and was also clearly told that this was nothing

22 for the ICTY. This was not a matter under ICTY jurisdiction and he was

23 not doing anything that could have been viewed as impermissible. And that

24 is why the witness decided to publish this eventually. And the state

25 president is, after all, the most protected person in any country.

1 One thing that I would like to draw the Chamber's attention to is

2 just something that I might be in danger of forgetting about later on.

3 Exhibit 11, tab 6 --

4 Q. Mr. Jovic, let me ask you this: Did the Globus weekly receive the

5 same order as you?

6 A. Yes. It was made public, both Globus and Slobodna Dalmacija at

7 the same time received the same order.

8 Q. Could you please read what's inside that box over there. The

9 heading: The Globus editor-in-chief, Davor Butkovic, what does he say

10 there, and what's the date?

11 A. The 4th of December.

12 Q. That's fine.

13 A. The Globus editor-in-chief says: "Globus will not comply with

14 The Hague order banning the publication of transcripts of protected

15 witnesses. If Globus deems a document to be of relevance to the public,

16 it will be published."

17 Q. Can you please read on.

18 A. "In a statement to the HINA news agency, Butkovic emphasised that

19 with no final court ruling, The Hague Tribunal or any other institution,

20 is unable to order anyone about telling them what to publish and what not

21 to publish because this would fly in the face of freedom of the media" --

22 JUDGE KWON: The Chamber has difficulty locating the document.

23 Tab 6, 4th of December, we have got as Slobodna Dalmacija, not Globus.

24 MR. KRSNIK: [Interpretation] That's most certainly Slobodna

25 Dalmacija, but the Globus editor-in-chief made this statement to

1 Slobodna Dalmacija. What has just been read was indeed written there.

2 This is what the Globus editor-in-chief is saying to Slobodna Dalmacija.

3 THE WITNESS: [Interpretation] But there's no translation.

4 MR. KRSNIK: [Interpretation]

5 Q. Yes, there is. Yes, there is. It's Exhibit 6, there's a

6 translation of that. What we have no translation of is in the big

7 exhibit, but what there is in the binders has been fully translated.

8 MR. KRSNIK: [Interpretation] Have you found that, Your Honours?

9 [In English] Page number 1.

10 JUDGE KWON: The position of Slobodna Dalmacija's editing chief,

11 Davor Butkovic.

12 MR. KRSNIK: Yes, Globus editor-in-chief.

13 JUDGE KWON: "I will not obey the order."

14 MR. KRSNIK: [Interpretation]

15 Q. What about Globus? They received the order but they went on

16 publishing, didn't they?

17 A. I think so.

18 Q. What about Mr. Butkovic, does he stand indicted?

19 A. No.

20 JUDGE BONOMY: Well, that was a very leading question you asked

21 about Globus. I'm not sure I know the answer from what's been said.

22 MR. KRSNIK: I agree, Your Honour. I agree.

23 JUDGE BONOMY: And I don't think -- Mr. Jovic doesn't sound as

24 though he knows.

25 THE WITNESS: [Interpretation] I don't sound as if I know what?

1 You mean if he actually went on publishing? I can't confirm.

2 JUDGE ROBINSON: Mr. Jovic, you received the order not to publish,

3 but you went on publishing. Why was that?

4 THE WITNESS: [Interpretation] Because based on everything that I

5 have said so far, I was misled into believing something that was

6 erroneous. I had received contradictory instructions and interpretations.

7 I was not certain, nor indeed am I now, whether the ICTY can issue orders

8 to me that affect my right to enjoy freedom in informing my readership.

9 JUDGE ROBINSON: What was the misleading information that you

10 received?

11 THE WITNESS: [Interpretation] The government position that was

12 declared; the position of Goran Granic, the Deputy Prime Minister; the

13 interpretation offered by the state attorney; the position put forward by

14 the Croatian Journalists' Association; the positions of many highly

15 qualified lawyers, politicians and holders of public offices; the

16 positions put forward by some international professional associations,

17 such as the European Journalists' Conference; the Reporters Without

18 Borders; even some rulings of the European Court in similar cases, of

19 which I only have indirect knowledge.

20 JUDGE ROBINSON: Did you not accompany your publication with a

21 statement that you knew that the publication was in violation of the order

22 of the Tribunal but you would publish nonetheless?

23 THE WITNESS: [Interpretation] Quite obviously. But I stated the

24 reasons that led me to start publishing. I was by no means clear whether

25 the ICTY had the power to issue to me such an order; I think that is a

1 matter for debate.

2 JUDGE ROBINSON: Yes, Mr. Krsnik.

3 MR. KRSNIK: [Interpretation]

4 Q. Just in order to simplify what Judge Robinson has just asked you,

5 did you actually know that you were publishing something that you were not

6 allowed to publish?

7 A. No.

8 Q. Well, explain, that is what you were just asked.

9 A. I was facing a legal dilemma because of contradictory accounts

10 that I had received and contradictory interpretations. Based on some of

11 the information I had obtained, I was not bound in any way to follow the

12 order, and the only thing that opposed this interpretation that I was

13 aware of at the time was the order itself. It's quite obvious, I flouted

14 the order. But what is not clear is as a citizen of the Republic of

15 Croatia am I duty-bound to follow that order. I am not a resident of

16 Greenland; I am a resident of the Republic of Croatia which has its own

17 laws, its own constitution.

18 There is something called the UN declaration of human rights,

19 founders of this very Tribunal guaranteeing to all the freedom to spread

20 and publish information. There is the European Union Convention on Human

21 Rights which addresses the same entitlements with no interference from the

22 authorities. That is stated unequivocally.

23 It's not as simple as it may seem. I am an intellectual. I take

24 into account the political circumstances. I take into account the body of

25 law relevant for these areas, human rights on the one hand and freedom of

1 information, freedom of press on the other. I must take all these into

2 account, as opposed to just one order taken as an absolute yardstick that

3 can, under no circumstances, be challenged.

4 JUDGE ROBINSON: Mr. Jovic, as I think you well know, all the

5 instruments to which you refer on freedom of the press have qualifications

6 in relation to court proceedings. I just make that point to the extent

7 that it is relevant.

8 Yes, Mr. Krsnik.

9 MR. KRSNIK: [Interpretation]

10 Q. I apologise, Mr. Jovic. I urge you to focus a bit. I will

11 reiterate the question put to you by Judge Robinson.

12 What were the relevant opinions put forth by the agencies of the

13 government of the Republic of Croatia and professional peers? Was there a

14 single opinion that went in favour of obeying the order issued by the

15 Tribunal?

16 A. No, the position --

17 MR. ACKERSON: Objection.

18 JUDGE ROBINSON: Let's hear Mr. Ackerson.

19 Yes.

20 MR. ACKERSON: The question's been asked and answered. The issue

21 is well in front of this Chamber now. I don't think we need to rehash it.

22 JUDGE ROBINSON: I agree, Mr. Krsnik. That's a matter that you

23 can raise in your address.

24 MR. KRSNIK: [Interpretation] I agree.

25 THE WITNESS: [Interpretation] If I may be allowed to add

1 something.

2 Within the witness protective measures, there was another matter

3 that led me to doubt --

4 MR. ACKERSON: Your Honours, I'm sorry. The witness at the moment

5 is now giving a speech, he's not responding to a question, and I would

6 object to that.

7 [Trial Chamber confers]

8 JUDGE ROBINSON: We'll hear what you have to say briefly.

9 THE WITNESS: [Interpretation] This is merely the continuation of

10 my answer.

11 Within the witness protective measures orders, it is clearly

12 stated who the measures are addressed at, the Defence counsel, the

13 Prosecution, but by no means does it address the journalists. Therefore,

14 the order states the parties that were to obey and comply with the order.

15 As a journalist, I am not part of the judicial mechanism; I am

16 part of the public domain, and I cannot protect any judicial secrets from

17 myself.

18 MR. KRSNIK: [Interpretation]

19 Q. Finally --

20 JUDGE BONOMY: That's an interesting comment, because that's you

21 asserting that no order of a court, whether it be in Croatia or here,

22 which provided for closed session testimony would apply to you as a

23 journalist. You would defy it in -- if it was made by a Croatian court or

24 by this Court, if you thought it in the public interest.

25 THE WITNESS: [Interpretation] I cannot categorically answer the

1 question, but I would probably take a similar course of action.

2 JUDGE BONOMY: Perhaps not much more to be said, Mr. Krsnik.

3 MR. KRSNIK: [Interpretation] Well, Your Honour, I wanted to show

4 the Trial Chamber the relevance of the circumstances existing in the

5 Republic of Croatia. That was why I wanted to show you Exhibit 11,

6 tab 8.

7 Q. But now I have to ask Mr. Jovic whether he knows who Mr. Ivo

8 Josipovic is.

9 A. Ivo Josipovic is a renowned legal expert.

10 Q. Will you tell us what his occupation is?

11 A. He's a professor at the faculty of law, and I believe that

12 international law is his specialty and he has dedicated the past years of

13 his professional work to the ICTY.

14 Q. Can you tell what he stated for Slobodna Dalmacija on the 6th of

15 December, 2000 --

16 JUDGE ROBINSON: Mr. Ackerson.

17 MR. ACKERSON: Sorry for the interruption.

18 I suspect that this is going to be the same line of inquiry about

19 Mr. Jovic receiving another opinion that differed from the court order.

20 It may be that it's other testimony, but if they are going towards that

21 line of testimony about soliciting different legal opinions that were

22 contrary to the court order, I would object. And I think it's already

23 been asked and answered. The issue's out there, and it doesn't need to be

24 addressed.

25 [Trial Chamber confers]

1 MR. KRSNIK: [Interpretation] Your Honour, Professor Josipovic is

2 the highest authority in the field of the ICTY in the Republic of Croatia,

3 and I believe that my learned friend from the OTP will fully agree with

4 this. And his legal opinion given to a journalist who was never before

5 the ICTY, who cannot view matters the way you do or I, of course this can

6 be a matter for mens rea.

7 The person involved is the president of the state. Imagine if you

8 had the president of the United States testifying about Iraq before this

9 Tribunal. I believe that this is a matter of universal human rights.

10 [Trial Chamber confers]

11 JUDGE ROBINSON: Yes, we'll hear it.

12 MR. KRSNIK: [Interpretation]

13 Q. Mr. Jovic, please read out this small passage which was translated

14 into English, that's Exhibit 11, tab 8.

15 A. This is the first case --

16 Q. Please, first the headline.

17 A. "This is the first case where the ICTY issues a special order to

18 the media of a country. Formally and legally speaking, this Tribunal does

19 not have the authority to do that. However, any Court ruling, including

20 this one, is subject to criticism and scrutiny. If it is established that

21 no longer the reasons are in place for" --

22 JUDGE ROBINSON: Let's hear Mr. Ackerson, he's on his feet.

23 MR. ACKERSON: I'm sorry, Your Honour, there might be a question

24 of translation, because the English translation which is in tab 8, which

25 is the second page in that tab, and at the bottom it's marked "page 1

1 of 6," and the last paragraph which has a bold caption which

2 says: "Confidentiality can be lifted," Mr. Jovic is reading the same in

3 Croatian, and I don't know whether his version is more accurate or the

4 English translation in writing what you have here. But the English

5 translation in writing says: "Legally speaking, the Tribunal is entitled

6 to do such a thing," and Mr. Jovic, I believe, just said that the Tribunal

7 was not entitled to do such a thing. I don't know which is accurate, but

8 I think that needs to be resolved.

9 JUDGE ROBINSON: It certainly does. What is the original?

10 MR. KRSNIK: [Interpretation] The original reads just as Mr. Jovic

11 has read it out. And I will tell you now that for me, having worked

12 before this Tribunal for eight years, I can say that this isn't the first

13 time that the translation provided by the OTP is not accurate. I

14 apologise, this may indeed be a genuine error, but there were many such

15 errors. I believe the text reads the way Mr. Jovic read it out here,

16 and -- but this can of course be confirmed.

17 JUDGE ROBINSON: Yes.

18 Let's ask the witness to read it and we'll have the translation.

19 MR. ACKERSON: Or, Your Honour, could I suggest that we put the

20 original Croatian version on the screen and have one of the interpreters

21 read it. And I would be satisfied with that.

22 JUDGE ROBINSON: Yes.

23 MR. ACKERSON: I don't know that Mr. Jovic is qualified to

24 actually translate that.

25 MR. KRSNIK: It's in the ELMO.

1 JUDGE ROBINSON: It's on the screen, yes.

2 Can I ask the interpreter to translate that.

3 THE INTERPRETER: "Legally speaking, the Tribunal does have the

4 authority to do that."

5 It was the interpreter's mistake. Apologies.

6 JUDGE ROBINSON: Well, let us -- let's hear that again. You're

7 saying that the correct translation is "legally speaking, the Tribunal

8 does have the authority to do that"?

9 THE INTERPRETER: Correct.

10 MR. KRSNIK: [Interpretation] No.

11 JUDGE KWON: Why don't you ask Mr. Jovic to read the passage.

12 MR. KRSNIK: Yes, I was asking.

13 JUDGE KWON: And once again.

14 MR. KRSNIK: [Interpretation]

15 Q. Mr. Jovic, please, could you read out the entire text, including

16 the headline.

17 A. Headline: "Confidentiality can be lifted. This is the first

18 case" --

19 Q. Please take it slowly.

20 A. " -- that the International Criminal Tribunal is sending a

21 special order -- is issuing a special order to the media in a country.

22 Formally and legally speaking, the Tribunal does have the authority to do

23 that."

24 Q. Carry on.

25 A. "However, any ruling of the Tribunal, including the instant one is

1 subject to criticism and scrutiny. If it is established that the reasons

2 why some of the material were declared confidential no longer exist, the

3 Tribunal may change the ruling. Such a course of action should be taken

4 if the reasons of safety and security no longer exist and which would

5 prevail over the clear public interest to learn certain details from a

6 court proceedings, Professor Josipovic said."

7 Q. My follow-up question to that is: Did Mr. Mesic agree with the

8 publishing and did he agree with the fact that the confidentiality should

9 be lifted once he became the president?

10 A. We --

11 MR. ACKERSON: Objection --

12 THE WITNESS: [Interpretation] -- said on several occasions --

13 JUDGE ROBINSON: Yes, Mr. Ackerson.

14 MR. ACKERSON: Unless Mr. Jovic spoke directly to -- or has

15 first-hand knowledge and spoke directly to Mesic, it's speculation. It's

16 asked whether Mesic agreed, and that's hearsay.

17 JUDGE ROBINSON: I agree.

18 What would be the basis of your knowledge, Mr. Jovic?

19 MR. KRSNIK: [Interpretation] Your Honours, if I may be of

20 assistance. We discussed this. This is Exhibit 11, tab 2. We've already

21 read that part. We don't to waste any more time. Here Mr. Mesic is in

22 agreement with the publishing of these documents.

23 JUDGE BONOMY: That's not my understanding of this particular

24 passage, Mr. Krsnik. I thought that he was claiming that only The Hague

25 Tribunal could stop Slobodna Dalmacija.

1 MR. KRSNIK: [Interpretation] If the documents published were a

2 forgery or a fabrication, and if such fabrications are indeed published,

3 then the only party that can put a stop to that is The Hague --

4 JUDGE KWON: Mr. Krsnik, could you point the passage to us.

5 MR. KRSNIK: [Interpretation] This can be found in the subheading

6 in Exhibit 11, tab 2 -- [In English] Page number 4 in Exhibit 2 --

7 JUDGE KWON: Oh --

8 MR. KRSNIK: [Interpretation] Exhibit is 11, tab 2, page 4. And

9 this is the text in a box. You have the English translation of it where

10 Mr. Mesic states: "Slobodna Dalmacija has published something that

11 actually suits me, provided they stay away from fabrications."

12 I was reading the original now, but let me look at -- therefore,

13 the main headline is: "Only The Hague Tribunal can stop Slobodna

14 Dalmacija."

15 It is clearly stated here that The Hague Tribunal can put a stop

16 to that only if his testimony is fabricated, that only in that case would

17 he seek protection from the Tribunal.

18 [Trial Chamber confers]

19 JUDGE BONOMY: Well, excuse me for being skeptical about your

20 translation, Mr. Krsnik, in view of what we've just recently experienced.

21 I think I would like you to identify the passage in the Croatian language

22 and ask Mr. Jovic to read it. Because we don't have an English

23 translation of the part that you're referring to -- oh, we do?

24 MR. KRSNIK: Yes, you have.

25 [Trial Chamber confers]

1 JUDGE BONOMY: I'm sorry, I do -- we do have it. I apologise.

2 [Trial Chamber confers]

3 JUDGE ROBINSON: Mr. Krsnik, would you bring your

4 examination-in-chief to an end in about five to ten minutes. Bear in mind

5 that we have to conclude by 1.45, and there is cross-examination to take

6 place.

7 MR. KRSNIK: [Interpretation] By all means, Your Honours. I meant

8 this to be my last question for the witness.

9 Q. Could you please briefly answer my questions. The first question:

10 Do you know whether the trial against Blaskic had ended with a final

11 decision before you went on to publish the documents?

12 A. The trial was closed and a judgement was rendered for Mr. Blaskic.

13 With the publication of these documents, we could in no way affect the

14 administration of justice in these proceedings, as opposed to the charges

15 against me, which state that I interfered with the administration of

16 justice.

17 Q. Could you please refrain yourself from commenting.

18 A. The documents were published after the rendering of a final

19 decision in that case.

20 Q. We said this several times, but I will ask you again. Do you know

21 how long Mr. Mesic had been president by then and what sort of protection

22 had been afforded him?

23 A. Mr. Mesic has now entered his second term of office, which in

24 Croatia lasts five years, and he's probably the most protected person in

25 the Republic of Croatia. The publishing of these transcripts could not

1 pose any physical threat to him. Judging from the election results, it

2 inflicted no political damage on him either.

3 Q. Now that you mention the political damage, can I ask you the

4 following. Why were protective measures sought during that famous private

5 session, the transcript of which we obtained from an official web page, do

6 you know that at all?

7 JUDGE ROBINSON: [Previous translation continues] ... to answer

8 that?

9 MR. KRSNIK: [Interpretation] Well, on the basis of the transcript.

10 If he read it, there Prosecutor Harmon clearly explains why the protection

11 is sought. And if he read the document, he would be able to know; if he

12 didn't read it, he doesn't know.

13 THE WITNESS: [Interpretation] There is one place where it reads --

14 JUDGE ROBINSON: You must not speak when counsel is on his feet.

15 Mr. Ackerson.

16 MR. ACKERSON: I would object to the question as asking for a

17 legal opinion from this witness, and I think the document speaks for

18 itself, as Defence counsel has stated.

19 JUDGE KWON: We can read it also.

20 [Trial Chamber confers]

21 JUDGE ROBINSON: Yeah, we can read the document ourselves.

22 Mr. Krsnik --

23 MR. KRSNIK: [Interpretation] That was what I wanted to get from

24 the witness, whether he was familiar with the document and whether he knew

25 why protective measures were sought, nothing more than that.

1 Q. Why did he ask for the protective measures? Was he well-known?

2 A. The protection was motivated by political reasons.

3 Q. That's all?

4 A. And the danger of potential political abuse.

5 Q. My final question. Exhibit 11, tab 5 --

6 JUDGE BONOMY: Just before you ask it. This is your view. In

7 other words, you say that the Prosecutor was misleading the Tribunal. Is

8 that right? Because political reasons weren't the reasons given for the

9 application.

10 THE WITNESS: [Interpretation] As far as I remember, they were.

11 MR. KRSNIK: [Interpretation] I'm trying to locate the place where

12 this is clearly stated in the document. However, you have the document

13 before you, you will be able to read it, and you will see that these were

14 the only reasons put forward by the Prosecution during that session in

15 support of their request for protective measures, the threat of political

16 manipulation. This was sought by Prosecutor Harmon.

17 Q. Was this document published in Slobodna Dalmacija?

18 JUDGE ROBINSON: Is there an answer to that question? A question

19 was asked of you, Mr. Jovic.

20 MR. KRSNIK: [Interpretation]

21 Q. Did you publish this document in Slobodna Dalmacija?

22 A. The entire transcript was translated into the Croatian language

23 and was published in Slobodna Dalmacija in its entirety. And I'm

24 referring to this session where protective measures for witnesses were

25 being decided upon.

1 Q. Thank you very much. I have no further questions.

2 JUDGE ROBINSON: Mr. Krsnik, may I take you back to an earlier

3 part in the proceedings today when Judge Bonomy asked the witness a

4 particular question. It was immediately after I had disallowed a

5 particular question on an objection raised by the Prosecutor and the

6 witness wanted to volunteer something and I allowed him to volunteer

7 something.

8 Following what he said, Judge Bonomy then said to him: Your

9 position then is tantamount to saying that notwithstanding an order made

10 by this Court or any court, you would publish it, provided you thought it

11 was in the public interest. And the witness said: Yes.

12 Now, that seems to me to be a very damaging answer to his case,

13 and in fact inconsistent with the way I thought the Defence was being

14 wrong, which is that is accused is saying he published but not in knowing

15 violation. But the answer that he gave to Judge Bonomy would seem to

16 suggest that he's a man who thinks he has a right to publish,

17 notwithstanding an order from a court to protect particular evidence,

18 provided he thinks it's in the public interest.

19 So I'm allowing you -- giving you an opportunity to have that

20 clarified.

21 MR. KRSNIK: [Interpretation] Your Honours, you're quite right to

22 have taken it that way. I think everything we've been saying today does

23 not point in that direction, and I'm glad to have my attention drawn to

24 that by you. Thank you very much, indeed.

25 I think Mr. Jovic had been given a chance to explain his entire

1 position because I was he was crystal clear. He had listened to advice

2 given by legal experts. They convinced him that he was not in violation

3 of any court orders. I think he has spent the morning trying to explain

4 that. But I think we best hear that from Mr. Jovic.

5 Q. Mr. Jovic, you heard the question from Judge Robinson and Judge

6 Bonomy. Please explain that for us.

7 A. I tried to describe the situation that I found myself in. I

8 wanted to stop publishing the transcripts. I wanted to comply with the

9 orders, and that's why I took so much time to consult with people. I will

10 not go through all of it again. But other sources offering other

11 interpretations were telling me that in this particular case on account of

12 all the circumstances surrounding it, I was in no way bound to comply with

13 the court order in full. I do not knowingly, wilfully, and particularly

14 not spitefully, violate the order of this Tribunal. Maybe I just decided

15 to lend credence to other interpretations that were offered to me at the

16 time.

17 [Trial Chamber confers]

18 JUDGE ROBINSON: How long will you be, Mr. Ackerson? We have to

19 stop at about 1.30 because one of our members, in fact, has a hearing this

20 afternoon.

21 MR. ACKERSON: An hour or less.

22 [Trial Chamber confers]

23 JUDGE ROBINSON: Yes. Then we'll adjourn until 12.00 and then

24 we'll have your cross-examination when we return.

25 --- Recess taken at 11.35 a.m.

1 --- On resuming at 12.01 p.m.

2 JUDGE ROBINSON: Yes, Mr. Ackerson.

3 MR. ACKERSON: Thank you, Your Honours.

4 Cross-examination by Mr. Ackerson:

5 Q. Good afternoon, Mr. Jovic. First I want to just clarify one point

6 before we begin the examination. You said you're an intellectual and that

7 as the editor of Slobodna Dalmacija you followed the trials here at ICTY

8 very closely. Is that correct?

9 A. You could call it second-hand experience, not first-hand

10 experience. I follow coverage in the media.

11 Q. Do you -- in your experience as the editor of a major newspaper in

12 Croatia, you certainly know the difference between a witness statement and

13 in-court testimony, do you not?

14 A. Well, I -- I'm afraid I would not be able to really define the

15 distinction between witness statements and in-court testimony, which can

16 also be a witness statement.

17 Q. That's --

18 A. I don't know. I don't know the difference, apart from the purely

19 formal difference.

20 Q. Narrow enough. I want to make sure that we're clear on this point

21 before we proceed because I'm going to refer to both of them.

22 Do you recall that you and I were going to meet to have a witness

23 statement but that was not in court. Correct?

24 A. Correct. We had a meeting. I'm not sure if this is correct, it

25 was at a stage where the investigations were still underway. And then

1 there was an agreement to meet again, but this never materialised.

2 Q. Mr. Jovic, just try to keep your answers simple, and if you need

3 to clarify you can do that. But the point is that we were going to meet

4 in Croatia not in court, the purpose of which was I was going to take a

5 statement from you. Correct?

6 A. I assume so, yes. I was prepared to give that statement. My

7 lawyers wanted a postponement so that we might be given a chance to

8 prepare for any questions that you might ask, and as far as I know that

9 was all right by you.

10 Q. Today you're testifying here in front of three Judges. Correct?

11 A. That's right.

12 Q. There were no Judges before, correct, when we previously met?

13 A. The investigators were there.

14 Q. Correct. Do you understand the difference now between an

15 out-of-court statement that you would have made to investigators and to me

16 and your testimony here in court today in front of Judges?

17 A. Well, of course.

18 Q. Okay.

19 A. There are procedural differences, essential ones if you like.

20 Q. Thank you very much. And the form of the statement -- strike that

21 question.

22 The relevant issues in Slobodna Dalmacija that this Court is

23 deciding on here today are 29 issues in November and December of the year

24 2000. Correct?

25 A. That's right.

1 Q. Four of the issues were published in November, starting with

2 November 27th?

3 A. Yes.

4 Q. 25 issues were published in December, starting on December 3rd?

5 A. Yes.

6 Q. The four issues in November published the witness statement of

7 Mr. Mesic; isn't that correct? Not his in-court testimony but his witness

8 statement.

9 A. I assume that was what I was supposed to tell you in Zagreb,

10 wasn't it? Yes, that was a witness statement, out of court, if you like.

11 Q. The simple question I'm asking you is that what you published in

12 November in four issues in Slobodna Dalmacija was Stjepan Mesic's witness

13 statement, not his in-court testimony.

14 A. Let it be that way. I agree with you. I agree with the

15 phrasing. But I must add we actually copied that statement from Vjesnik,

16 another daily, as an introduction to --

17 Q. I didn't ask that question, though. I would ask you to answer my

18 questions and your counsel will have the opportunity to clarify.

19 Okay. The publications --

20 JUDGE ROBINSON: [Microphone not activated].

21 Mr. Krsnik is on his feet.

22 MR. KRSNIK: [Interpretation] Your Honours, please, my client is

23 not used to courtrooms. I think this is the very first time in his life.

24 Can you please ask the Prosecutor to try to be less strict with the

25 witness. Thank you.

1 JUDGE ROBINSON: Well, if he is doing anything improper, we will

2 see to it that he's stopped.

3 MR. KRSNIK: [Interpretation] Thank you.

4 MR. ACKERSON:

5 Q. Mr. Jovic, the four issues in November, Slobodna Dalmacija

6 published witness statements. The 25 issues -- strike that.

7 The 22 issues, starting with December 6th published Mr. Mesic's

8 in-court testimony, the transcripts of his testimony, yes?

9 A. I agree.

10 Q. And you had mentioned earlier here that in 1997 Mr. Mesic's

11 statement had been published -- I'm sorry. Are you having trouble

12 hearing? Is there a problem with your hearing, Mr. Jovic? Are you not

13 getting the translation?

14 A. There was a glitch, but it's fine now.

15 Q. You had referred in your testimony here earlier to the publication

16 of Mr. Mesic's statement by two newspapers, Vecernji List and Vjesnik.

17 That was in 1997.

18 A. Correct. I think that's how it was.

19 Q. And that after that fact, that information was published by a

20 number of other newspapers, including your newspaper, Slobodna Dalmacija,

21 at that time in 1997?

22 A. I think so.

23 Q. And in 1997, Stjepan Mesic had not yet testified in the Blaskic

24 trial. Isn't that correct?

25 A. No. He hadn't. He testified in 1998, in March.

1 Q. Specifically 16 March to 19 March 1998?

2 A. Yes.

3 Q. So the oral order that was issued prior to Mesic testifying in

4 1998, at the time the 1997 witness statement was disseminated, had not

5 been issued, the oral order that allowed or required Mr. Mesic to testify

6 in closed session?

7 A. I don't know that.

8 Q. Well, it could not possibly have been issued because his testimony

9 had not occurred.

10 JUDGE ROBINSON: Yes, Mr. Krsnik.

11 MR. KRSNIK: [Interpretation] Your Honours, we can't examine a

12 witness on something he claims he doesn't know, and he was very clear

13 about that.

14 JUDGE ROBINSON: Yes, Mr. Ackerson, please move on.

15 MR. ACKERSON: Your Honour, I think it's not a matter of him not

16 actually knowing; it's just a matter of me asking some follow-up questions

17 so that we are of the same mind. If you would give me some latitude on

18 this point.

19 JUDGE ROBINSON: Very well, yes.

20 MR. ACKERSON: And I can make a proffer what the relevance is, if

21 you're interested in.

22 A big part of the defence has been that this was public record

23 information, and my point with this line of questioning is that what was

24 disseminated was Mr. Mesic's witness statement, and that was prior to the

25 1998 oral order to go into closed session. So it's -- they are two

1 different bodies of information.

2 If you allow me to proceed, I'll go very briefly through this line

3 of questioning.

4 JUDGE ROBINSON: Yes, please proceed.

5 MR. ACKERSON:

6 Q. I'll ask this question more simply, Mr. Jovic.

7 On March 16th, Judge Jorda -- and you've read the transcripts of

8 Mr. Mesic's testimony, obviously, yes?

9 A. Yes.

10 Q. You need to respond verbally to the questions, not just nod.

11 And so you know that Judge Jorda ordered that Mesic testify in

12 closed session on March 16th, 1998. Correct?

13 A. Yes.

14 Q. So when these two newspapers had disseminated his witness

15 statement in 1997, that closed-session order did not yet exist. You would

16 agree with that?

17 A. I do.

18 Q. Thank you. And you're aware that in 1997 even there was an order

19 of a court in response to that dissemination of information by

20 Vecernji List and Vjesnik, are you not? There's an order of this Court,

21 of the Trial Chamber here at the Tribunal.

22 A. I don't remember that.

23 Q. Fair enough. I just want to take you back to when you said that

24 in 1997 Mesic himself had admitted that he testified at the Tribunal.

25 This is on page 23, line 21 of the transcript. Do you recall saying that

1 in your testimony?

2 A. I said 1998, after he appeared at this Tribunal. That was when he

3 admitted that he had appeared as a protected witness. He did so on many

4 different occasions, in fact. I quoted the relevant sources where he

5 stated this for the public record.

6 Q. Fair enough. I'm going to talk about some of the articles that

7 you had brought before the Tribunal today for the first time.

8 MR. ACKERSON: Could the usher put annex C on the overhead

9 projector, please. This is annex C of Defence counsel's exhibits.

10 Q. While that exhibit is being placed on the overhead projector, I

11 just have a couple of questions, Mr. Jovic, that we can just get out of

12 the way. Do you recall the circumstances when Mr. Mesic -- strike that.

13 You had referred to Vecernji List and Vjesnik as having received a

14 leak of the witness statement, and thereafter publishing it in their

15 newspapers. Correct?

16 A. Yes.

17 Q. And of course you recounted that story of that leak in your

18 newspaper a number of times where you allege that the Defence counsel had

19 actually leaked that statement?

20 A. That was our information at the time.

21 Q. And even in 1997, as a result of that leak by Defence counsel,

22 Mr. Mesic was confronted publicly with the information of a leak, leaked

23 information. Isn't that correct?

24 A. I can't comment on that.

25 Q. If you could take a look at what -- at the exhibit that is on the

1 overhead projector to your left, Mr. Jovic. It was -- it is what was

2 marked as annex C, and it purports to be an article from the Feral Tribune

3 on the 23rd of March, 1998. That was presented by your Defence counsel

4 earlier. Do you see that?

5 A. Yes.

6 Q. And in this article which is published shortly after Mr. Mesic

7 testifies; correct? Am I right in that?

8 A. That's right. It was published several days after his testimony,

9 in fact.

10 Q. Correct. And in this article, the article does not go into the

11 content of Mr. Mesic's testimony, does it?

12 A. The article here reveals the identity of a protected witness. In

13 fact, it is the witness himself who does that. And that was the primary

14 purpose of protective measures to begin with.

15 Q. What Mr. Mesic says in this article is that: "I testified in the

16 process against General Blaskic about the circumstances familiar to me but

17 which I can't explain more," and it says detalija [phoen], I presume

18 that's a translation issue, and the translation is cut off, but I presume

19 that he then explains that he testified in closed session. So Mr. Mesic

20 himself is telling the newspaper --

21 MR. KRSNIK: [Interpretation] Your Honours.

22 JUDGE ROBINSON: Yes, Mr. --

23 MR. KRSNIK: [Interpretation] Your Honours, the Prosecutor has no

24 right to twist things around. We do see what it says. The Prosecutor has

25 just stated a fact that is simply not true. He is confusing the witness.

1 Mr. Mesic didn't say anything other than what's stated here and it's

2 crystal clear. He said: "The circumstances that I am familiar with but

3 that I am unable to offer any detailed interpretation of." The

4 translation stops right there. "Because I promised the President of the

5 Chamber that I would not comment on the proceedings."

6 The Prosecutor has no right to twist his words, and his words are

7 right there for all of us to see.

8 JUDGE ROBINSON: What are you saying is correct in what the

9 Prosecutor has said.

10 MR. KRSNIK: [Interpretation] The Prosecutor says the translation

11 stops right there, but then Mr. Mesic goes on to explain why he was a

12 protected witness. In fact, he doesn't, not at all. He's crystal clear

13 on the issue. He says he's not going to comment on that because he so

14 promised the President of the Chamber.

15 MR. ACKERSON: I can live with that interpretation, too.

16 JUDGE ROBINSON: Yes.

17 MR. ACKERSON:

18 Q. The point being, Mr. Jovic, that in this article Mr. Mesic's --

19 the content of his testimony is not published. Isn't that correct?

20 A. Correct, but --

21 Q. Thank you very much --

22 A. But he is crystal clear here when he says it was no sort of secret

23 testimony.

24 MR. KRSNIK: [Interpretation] Can the witness please be allowed to

25 finish his answer? He was interrupted in mid-stream and I think he

1 should be allowed to finish his answer.

2 JUDGE ROBINSON: Have you finished?

3 THE WITNESS: [Interpretation] No. President Mesic states in quite

4 definite terms in this very interview that it was no secret testimony.

5 MR. ACKERSON: Can I have annex D placed on the overhead

6 projector, please.

7 Q. Mr. Jovic, can you familiarise yourself with that document just

8 very briefly. That is what was briefly presented to you as annex D. Is

9 that correct?

10 A. Yes.

11 Q. And that is an article from Vecernji List on March 23rd, 1998,

12 days after Mr. Mesic completed his testimony in the Blaskic trial. Isn't

13 that correct?

14 A. Yes.

15 Q. And I have the English translation in front of me, and it's the

16 first page of annex D. You can look at the Croatian version of this, and

17 unfortunately the English translation is cut off at the end, so I can't

18 read to the end of the sentence. But in the English version the sentence

19 that -- the first sentence that's relevant is the question where they

20 say: "Why was your testimony secret?"

21 Do you see that? "Why was your testimony secret?"

22 A. I do, I do.

23 Q. And Mr. Mesic's purported response here is that: "I testified in

24 closed session."

25 You see that?

1 A. I do.

2 Q. And later the question is asked: "In Blaskic" -- and I'm reading

3 this verbatim from the English translation. This is not proper English

4 but it is what is presented here in the translation.

5 "In Blaskic trial Hague court is trying to establish whether

6 Croatia did or didn't attack Bosnia."

7 Do you see that sentence?

8 A. I do.

9 Q. So the writer of Vecernji List is asking Mr. Mesic a question

10 about the trial, and his response is: "That was the subject of the trial,

11 and I don't want to comment."

12 Do you see that?

13 A. Yes.

14 Q. So he doesn't reveal the content of his closed session testimony

15 in this article, does he?

16 JUDGE ROBINSON: Yes, Mr. Krsnik.

17 MR. KRSNIK: [Interpretation] Your Honours, I'm not prone to

18 interrupt anybody's cross-examination too often, but I find myself

19 compelled to because, again, the Prosecutor is twisting things around.

20 This is not what it says. The first question: "Why was your

21 testimony secret?" And then Mr. Mesic [as interpreted] provides an

22 answer, a sentence-long answer, and that's not where it ends, where the

23 Prosecutor just suggested. There's a whole argument there and it's

24 crystal clear. The same applies to -- well, yes, the Blaskic trial, and

25 so on and so forth. And then the Prosecutor just cuts the sentence off,

1 but there is an entire sentence there. It has a beginning, it has an end,

2 and then he twists the meaning of the sentence. That's not the point.

3 If you allow me, I will read the sentence.

4 "Why did you testify in secret?

5 "I testified in closed session because my testimony before the

6 investigators of The Hague Tribunal had been politicised."

7 Can we have the whole sentence then, please, if we're quoting

8 already. Maybe the meaning in my language and in your language is not the

9 same.

10 JUDGE KWON: Mr. Ackerson was just checking whether the accused is

11 following his reading of this article.

12 JUDGE ROBINSON: Bear in mind, Mr. Krsnik, that you'll have an

13 opportunity to re-examine.

14 MR. KRSNIK: [Interpretation] Thank you very much, Your Honours.

15 JUDGE ROBINSON: Although we have to proceed very quickly.

16 MR. ACKERSON: [Microphone not activated].

17 THE INTERPRETER: Microphone for counsel, please.

18 MR. ACKERSON:

19 Q. I'm not sure whether I got the ultimate answer I was looking for,

20 Mr. Jovic, which is that in this article in which he's asked questions

21 about the content of his testimony, Mr. Mesic does not give it.

22 A. No. He says he's asked: "Was the subject Bosnia and

23 Herzegovina?"

24 And he says: "That was the subject of the trial."

25 I wouldn't comment on this question, but he in fact did. At least

1 one thing he did say for sure is what the trial was about. He did reveal

2 that much.

3 Q. I think that would be hard to deny when you're talking about the

4 Blaskic trial, that it was about those subject matters.

5 MR. ACKERSON: But can I now present the witness with what was

6 annex E, please.

7 Q. Mr. Jovic, do you have in front of you what was previously marked

8 as annex E, which is an article from Vjesnik on March 23rd, 1998?

9 A. Yes.

10 Q. And again, it's an article about Mr. Mesic testifying against

11 General Blaskic. And anywhere in this article do you see anything about

12 the content of his testimony?

13 A. No, nothing about the content. But, again, he reveals the fact

14 that he appeared as a protected witness.

15 MR. ACKERSON: Thank you very much. Annex F, please, if you could

16 present that to the witness.

17 [Trial Chamber confers]

18 MR. ACKERSON:

19 Q. Now, annex F was -- it is an article from a newspaper called

20 Jutarnji List dating April 7th, the year 2000. Do you have that in front

21 of you?

22 A. Yes.

23 Q. And that purports to be an interview with the Prosecutor

24 Carla del Ponte, Prosecutor of this -- of the Office of the Prosecutor

25 here at this Tribunal, yes?

1 A. Yes.

2 Q. And in this interview, she's asked a number of questions and

3 specifically one question where she -- the question is: "What do you

4 think about this government?" This is according to the English

5 translation that was provided to me this morning. Do you see that

6 question in the version that you have in front of you? "What do you think

7 about this government?"

8 A. It's quite illegible. The print is too small for me.

9 Q. Well, perhaps I will put to you what the English translation says

10 because this is being put forward by your lawyer and you can confirm

11 whether or not this was contained in the article. The question

12 was: "What do you think about this government?"

13 And the answer here that is attributed to Carla del Ponte is: "I

14 think it's great. Your president," referring to Mr. Mesic, "is" -- and

15 that's my assertion, "is a big friend of our court. He was a very

16 important witness on one of our trials and he knows a lot and he was

17 truly" -- and then it's cut off, so I don't think what the rest of her

18 statement is.

19 Can you confirm that that is contained in that article or not?

20 A. Yes. That's what the headline says. And then it goes on to

21 say: "It was beautiful talking to him." Or: "It was wonderful talking

22 to him."

23 Q. She doesn't mention the Blaskic trial, does she?

24 A. Not explicitly, but from the entire context it transpires that

25 this is the precise trial involved.

1 Q. She doesn't mention the content of Mr. Mesic's testimony in the

2 Blaskic trial, does she?

3 A. It seems not.

4 Q. So in the four annexes that was presented to this Court by your

5 lawyer this morning, annexes C, D, E, and F, the content of the protected

6 testimony of Mr. Mesic in the Blaskic trial was not published. You agree

7 with that?

8 A. We were claiming that it was the identity of the protected witness

9 that was disclosed and indirectly the contents of the testimony.

10 Q. And I'm putting to you that regarding the content of his

11 testimony, indirectly or directly, it is not contained in these articles.

12 Yes or no?

13 A. The outline of the testimony is contained there, but I can agree

14 with what you say.

15 JUDGE BONOMY: I find that difficult to understand, I'm afraid.

16 What do you mean the outline of his testimony is -- or are you just not

17 able to face up to the harsh reality that there's no reference to the

18 testimony?

19 THE WITNESS: [Interpretation] I said that only subjects of the

20 testimony were mentioned, not the content itself.

21 JUDGE BONOMY: Thank you.

22 MR. ACKERSON:

23 Q. Moving on to the next point. You -- on page 30 of your -- of the

24 transcript of your testimony, page 30 of outline 1, you said that in the

25 year 2000 when Mr. Mesic ran for president people wanted to know if he had

1 testified. Do you remember saying that this morning? And we can have

2 your transcript read back to you if you don't recall saying that.

3 A. No, there's no need for that. I attended numerous journalist

4 conferences where precisely that question -- that issue was raised.

5 Q. So my question to you is this: If you're saying that when Mesic

6 ran for president in 2000 people wanted to know if he had testified, then

7 the fact of his identity as a protected witness was still unknown to a lot

8 of people. Correct?

9 A. Those were leading questions which showed that the people knew of

10 it, rather than they didn't know. Without that sort of information, it

11 wouldn't have been possible.

12 Q. Let me just ask the question a different way. You said that the

13 people wanted to know if he testified, and then you proceeded to run a

14 number of stories that publicised the fact that he was a protected witness

15 and your lawyer described that as good copy for you. So it obviously was

16 a newsworthy issue that he was a witness.

17 A. This was merely seeking the confirmation of what people had

18 already known. They had known that he had been a protected witness.

19 Q. Okay. I'm going to get to your articles in a second, and we'll

20 revisit that point. In the year 2000 you testified here earlier, and it's

21 on page 30 of outline 12, that you received a parcel that contained

22 CD-ROMs. Is that correct?

23 A. Correct.

24 Q. Now, the contents of those CD-ROMs are a little bit unclear to me

25 so I'm going to go through these. You said they contained transcripts of

1 testimony. Correct?

2 A. Two CDs contained the content of the testimony, I've already said

3 that, and the third CD contained the text published on the official web

4 page of the ICTY.

5 Q. It was good you had predicted my next question, because the text

6 of what was published on the ICTY web site that was contained on that

7 CD-ROM is what I want to talk about now. Okay?

8 A. Yes.

9 Q. The text that was on the web site as provided in a document by

10 your Defence counsel today is not the closed session testimony of

11 Mr. Mesic in the Blaskic trial, is it?

12 A. It contained the session at which it was decided that the

13 testimony should be carried out in a -- in closed session. So it clearly

14 showed that he was to testify in closed session.

15 Q. I'll ask the question again. That CD did not contain the

16 transcripts of Mr. Mesic's closed-session testimony in the Blaskic trial,

17 did it?

18 A. No, not the testimony itself.

19 Q. Thank you very much. You had said that it was very easy for you

20 to verify or for maybe your investigators to verify or authenticate, I

21 think is the word that you used, based on the web page what was on

22 the CD. Correct?

23 A. Yes.

24 Q. And specifically what you're referring to is that on the CD where

25 the transcript of the argument that was made by the lawyers that Mr. Mesic

1 should proceed in closed session was easily verifiable because that was on

2 the web page of the ICTY. Correct?

3 A. Evidently. Evidently it was to be found there.

4 Q. Now, these CD-ROMs that you had obtained also contained the actual

5 transcripts of his closed-session testimony. Correct?

6 A. That's correct. Those were separate CDs. All these contents were

7 not to be found on one CD.

8 Q. And you could not verify on the ICTY web site whether these

9 transcripts were accurate because they were not contained -- the

10 transcript of Mr. Mesic's testimony because they were not contained or

11 published on the ICTY web site. Correct?

12 A. I think they were published. I think they were taken from the web

13 pages and then saved.

14 Q. You stated here that the transcripts of the hearing to go into

15 closed session was on the web page, on the ICTY web page, yes?

16 A. Yes. The ruling to move to -- into closed session.

17 Q. The point I'm making, Mr. Jovic, is that Mr. Mesic's

18 closed-session transcripts of his testimony were not on the ICTY web page?

19 A. Part of the closed session was, a small part of it.

20 Q. What evidence do you have of that, because nothing has been

21 presented to this Court this morning. What evidence do you have that any

22 closed-session transcript was put on an ICTY web page?

23 A. One should look into the transcripts. I can't speak off the cuff.

24 There is the ruling to move into closed session, and I believe that for

25 some time after that there's still text running.

1 Q. The question remains: Do you have any evidence whatsoever that

2 the transcript of his testimony was published?

3 A. The transcript of the testimony itself was not published. I never

4 claimed that --

5 Q. Okay. Thank you --

6 A. -- and I'm referring to the transcript from the Blaskic case.

7 Q. Let's now talk about the publications in Slobodna Dalmacija

8 themselves. I'm going to start with November 27th.

9 MR. ACKERSON: Do you have the exhibits that could be presented to

10 Mr. Jovic in order.

11 JUDGE BONOMY: Is it best to follow these from the binders or from

12 the supplement you gave us?

13 MR. ACKERSON: I suppose the binders, Your Honour, would be the

14 easiest so we're all on the same page.

15 [Prosecution counsel confer]

16 MR. ACKERSON: I would like to present first what's been marked as

17 Prosecution -- what has been admitted into evidence as Prosecution

18 Exhibit 11, tab 1, which is the November 27th issue of Slobodna Dalmacija.

19 Q. Do you have that exhibit in front of you, tab 1, Exhibit 11,

20 Mr. Jovic? It's your newspaper from November 27th. Do you have that

21 issue in front of you, Mr. Jovic?

22 A. I do.

23 Q. And were you the editor-in-chief on this day that this was

24 published?

25 A. I was.

1 Q. On the cover you -- one of the headlines, and this is page 1 of

2 the English translation, it's stated that: "This is the first full and

3 accurate testimony by Stjepan Mesic at The Hague Tribunal on 19 April

4 1997."

5 Do you see that headline on the front of your paper?

6 A. I do.

7 Q. To be quite honest, this is not his testimony; it's actually his

8 witness statement, to be precise, that's published in this newspaper.

9 Yes?

10 A. Correct.

11 Q. Thank you.

12 A. This must have been a mistake, but ...

13 Q. Let's go to the second page of the November 27th issue. And

14 you'll see another headline at the very top -- it's actually page 7 of

15 November 27th.

16 Do you have page 7 in front of you?

17 A. Yes.

18 MR. ACKERSON: I'm sorry, I mistakenly referred to it as the

19 second page, but it's the seventh page.

20 Q. Because it refers the same mistake you refer to on the cover is

21 made on page 7, where it says: "The transcript from The Hague, the

22 complete testimony of Stjepan Mesic before The Hague court on 19 April

23 1997."

24 MR. KRSNIK: [Interpretation] Your Honours.

25 JUDGE ROBINSON: Yes, Mr. Krsnik.

1 MR. KRSNIK: [Interpretation] I think I should allow Mr. Jovic to

2 answer. He already spotted what this is about.

3 THE WITNESS: [Interpretation] Yes. This text above the headline

4 obviously contains an error. It says here: "In four instalments we will

5 be publishing the contents of the first testimony," and this is precisely

6 what you've been talking about. It says here that he testified before the

7 Tribunal twice, which is also imprecision.

8 MR. ACKERSON:

9 Q. Mr. Jovic, when you say "it says here," we need to be precise for

10 the record. On page 7, in the bottom right-hand corner, there's a

11 darkened box. And it starts with "Stjepan Mesic." Is that what you're

12 referring to?

13 MR. ACKERSON: This is page --

14 THE WITNESS: [Interpretation] Yes. The same box, but that's the

15 second bullet or item.

16 [Trial Chamber confers]

17 MR. ACKERSON: In the English translation it's page 2 of 7, and at

18 the very bottom of the page and it's titled "inset."

19 Q. And here very clearly -- and it says at the bottom that it's

20 written by the editor. And that is you, is it not?

21 A. No. It says that it was the team of investigators of

22 Slobodna Dalmacija who authored this. I myself didn't edit the text in

23 any way.

24 Q. Referring to the inset box that's darkened, can you read the last

25 line of that inset box? It's a line that concludes with the

1 word "editor."

2 A. I don't see that. I see that it says the headings are produced by

3 the board of editors.

4 JUDGE ROBINSON: Yes, Mr. Krsnik.

5 MR. KRSNIK: [Interpretation] Your Honours, again it's either an

6 error in interpretation, but in the original it says that the headings are

7 those of the board of editors. The editor himself is not mentioned

8 anywhere.

9 JUDGE ROBINSON: The board of editors. You'll accept that?

10 MR. ACKERSON: I'll accept that, yes, the board of editors.

11 JUDGE ROBINSON: Yes.

12 MR. ACKERSON:

13 Q. And are you -- at that time, were you on the board of editors as

14 the editor-in-chief, Mr. Jovic?

15 A. I answered that. The editor-in-chief, of course, is the head of

16 the board of editors.

17 Q. Thank you. And in this inset box, Mr. Jovic, you very clearly set

18 out the difference between Mr. Mesic's witness statement that he gave to

19 the Tribunal on April 19th and his testimony in the Blaskic trial, which

20 you or the board of editors state, quite clearly, was a confidential one,

21 do you not?

22 A. It is stated that it was confidential.

23 Q. Let's go to the next exhibit -- the next tab in Exhibit 11, which

24 is tab 2, and this is November 28th, the year 2000. And actually direct

25 your attention to page 7, again.

1 MR. ACKERSON: And, Your Honours, while this is getting set up,

2 this would be page 2 of the English translation. And again, there's an

3 inset box in the translation that begins with: "On his own

4 initiative ..."

5 Q. Mr. Jovic, do you have page 7 in front of you of your

6 November 28th issue?

7 A. Yes, I have it before me.

8 Q. And again, the very top of the page repeats the error from the

9 first issue, which is: "The complete testimony of Stjepan Mesic before

10 The Hague Tribunal on the 19th of April" is repeated, is it not?

11 A. Evidently. But the editors were obviously unaware of the

12 circumstances in which his first testimony was given.

13 Q. Now, Mr. Jovic, as the editor of this paper, aren't you interested

14 in making sure that what is published in the paper is as accurate as

15 possible?

16 A. Of course.

17 Q. There's another inset box at the bottom of this page that I'd like

18 to refer you to. Do you see that? It's slightly darkened.

19 A. I see that.

20 Q. It is basically a repeat from the previous day, but the language

21 is slightly modified, because this time it says: "Mesic's second

22 testimony was secret, at his own request." Do you see that?

23 A. Yes.

24 Q. Now, of course you've got the -- you received this information on

25 a CD-ROM that contained the full arguments by Blaskic's Defence counsel

1 and the OTP Prosecutors --

2 JUDGE ROBINSON: Yes, Mr. Krsnik.

3 MR. KRSNIK: [Interpretation] Apologies. I must intervene because

4 the Prosecutor is misinterpreting the evidence again. The two texts are

5 absolutely identical in the original. Both the text published on the 27th

6 and the one on the 28th of November are quite identical. There's not a

7 single difference, and I can't see why the Prosecutor is saying that

8 they're slightly different.

9 JUDGE ROBINSON: Mr. Ackerson.

10 MR. ACKERSON: I think that's correct. I think they are

11 identical. I just got different translations for the same Croatian

12 version.

13 Q. Mr. Jovic, let me ask you this then because I have two different

14 English translations, one which says that -- the translation was: "Mesic

15 testified confidentially," and this one says that he testified "secretly"

16 or "was secret."

17 Are both of those accurate translations or which one is more

18 accurate in your mind?

19 A. Both terms may be treated as synonymous in the Croatian language.

20 Q. Fair enough. I'm going to move on now to December 3rd. You do,

21 in fact, publish two more instalments of Mesic's witness statement on

22 the 30th -- on the 29th and the 30th, correct, but we don't go into them

23 here because they're largely the same. Yes, do you agree?

24 A. Yes, I agree.

25 Q. You receive -- the next day you receive a cease and desist order

1 from a Trial Chamber I in the Blaskic case, via facsimile is what you

2 testified, yes?

3 A. That's correct.

4 Q. And that cease and desist order is published in its entirety, word

5 for word, on December 3rd. Isn't that correct?

6 A. Yes.

7 Q. As well as on the front page of December 3rd you feature the fact

8 that you received a cease and desist order, do you not?

9 A. That's correct.

10 MR. ACKERSON: I'm sorry, I think we should present the witness

11 with what is tab 5.

12 Q. Do you have the December 3rd edition in Croatian in front of you?

13 A. I do.

14 Q. I'm going to read for you my English translation of one of the

15 major headlines on this edition, and you can tell me whether this

16 translation is accurate. It says: "The Hague Tribunal has forbidden

17 Slobodna Dalmacija further publishing of Mesic's testimony."

18 Is that an accurate translation?

19 A. Yes.

20 Q. So that would suggest to me, Mr. Jovic, that you had a pretty

21 clear understanding of the cease and desist order?

22 A. I've spoken about that already. At the time I had received

23 assurances and I believed that this order was not directly in relation to

24 me as a citizen of the Republic of Croatia. I believed that this order

25 could only be enforced through the Croatian judiciary.

1 Q. This cease and desist order is directed at Slobodna Dalmacija, by

2 name, is it not?

3 A. But similar orders were sent to the Croatian judiciary, weren't

4 they? I was expecting a certain procedure in that sense.

5 Q. I'm going to get to that in a moment, the different legal opinions

6 that you sought.

7 But my question right now is that: This cease and desist order

8 was served on Slobodna Dalmacija by name, of which you were the

9 editor-in-chief, right?

10 A. It was faxed through to Slobodna Dalmacija, yes.

11 Q. And at the bottom of that order, if you received, admittedly

12 received, it says that Slobodna Dalmacija must stop publishing the

13 statements and the transcripts of testimony of the protected witness,

14 doesn't it?

15 A. Yes. But again, my understanding was not that we had to implement

16 that order directly without appropriate decisions from the Croatian

17 judiciary and its bodies.

18 Q. So what you're telling this Chamber is that there was something

19 ambiguous about that order in your mind?

20 A. Yes, precisely. I did not mean to knowingly violate that order,

21 as you claim. I was waiting. I may have erred, but I was waiting for a

22 certain procedure within Croatia to kick in. But then I also received the

23 interpretations that I have already elaborated on.

24 Q. So I want to ask you --

25 JUDGE ROBINSON: What procedure were you waiting on to kick in?

1 THE WITNESS: [Interpretation] Constitutional law of Croatia says

2 that the cooperation of Croatia and Croatian citizens with the ICTY can

3 only go through the government office for cooperation. There is no direct

4 contact, in other words. I was expecting an order like that, one similar

5 to the one that you sent to Croatia and Slobodna Dalmacija, to reach me

6 from a body belonging to the Croatian judiciary pursuant to your own

7 order. For example, I was arrested pursuant to a decision of a Croatian

8 court, but that decision itself was pursuant to a ruling of The Hague

9 court, which means that I was not arrested and kept in detention for a

10 week pursuant to an order from The Hague.

11 MR. ACKERSON:

12 Q. Mr. Jovic, you state here that this cease and desist order that

13 was faxed to your office that you received, that says to stop publishing

14 statements and testimony of Mesic, was ambiguous to you. So my

15 question -- and you sought different legal opinions. But you went ahead

16 and published anyways, didn't you? And you put on the front page of your

17 paper that you were publishing in contravention of the cease and desist

18 order, do you not?

19 A. I stopped publishing until I received the appropriate

20 explanations.

21 Q. What additional explanations did you seek from Trial Chamber I in

22 the Blaskic Trial Chamber that had issued the decision? If you were so

23 concerned about the ambiguity of their cease and desist order, what

24 additional clarity did you seek from Trial Chamber I?

25 A. I have told you already who it was that I was expecting an

1 explanation from, and it wasn't the Trial Chamber. Maybe it's an omission

2 on my part. But I thought that this was down to the government office for

3 cooperation, to seek that sort of explanation.

4 Q. So you made no attempts to seek any clarification from Trial

5 Chamber I?

6 A. Not directly.

7 Q. So you deliberate on the front pages of your paper on

8 December 3rd, 4th, and 5th. Let's go now to December 6th.

9 MR. ACKERSON: And if you can present the witness tab 8 of

10 Exhibit 11, the December 6th edition of Slobodna Dalmacija.

11 Q. Do you have that edition in front of you, Mr. Jovic?

12 A. Yes.

13 Q. What is the major headline of the December 6th edition?

14 A. "Slobodna reveals a Hague secret."

15 Q. Now, if you're -- the legal opinions that you obtained that gave

16 you a contrary interpretation of the cease and desist order served

17 directly on you, this is not true because you didn't consider it a secret

18 at all, did you?

19 A. Well, the headline itself was phrased to attract readers. That's

20 how it goes. A certain amount of poetic license is always involved in

21 phrasing headlines.

22 Q. And perhaps a certain amount of license would allow you to come up

23 with your own interpretation of a cease and desist order so that you could

24 publish transcripts, which also sells papers, doesn't it?

25 A. I don't agree. That certainly wasn't my motive.

1 Q. If I could turn your attention to page 3 of the December 6th

2 issue ...

3 [Prosecution counsel confer]

4 MR. ACKERSON: If I could refer Your Honours' attention to page 6

5 of the English transcript of this tab.

6 Q. Mr. Jovic, I want to read to you the English translation that I

7 have from the -- it's a blocked box on the right-hand side of that page,

8 page 3, right in the middle, two columns, a block of text. And it says --

9 my English translation is the following. "Despite this fact and despite

10 the order from the Tribunal in The Hague, which threatens Slobodna

11 Dalmacija with penalties which we also made public, we decided,

12 notwithstanding the risk, to publish instalments of the whole contents of

13 Mesic's mysterious testimony given before the Tribunal on March 16th

14 to 19th."

15 Is that a fair translation of the Croatian version?

16 A. Yes. But I wrote "mysterious," and there's a certain amount of

17 irony involved, you know. It means that it was and wasn't secret at the

18 same time, if you see what I mean.

19 Q. Well, that interpretation contradicts the headlines on the paper,

20 doesn't it?

21 A. I'm not sure what you mean.

22 Q. The headline of your paper says "secret testimony, secret

23 revealed," doesn't it?

24 A. So what seems to be in contradiction to that?

25 Q. I'll move on. Never mind.

1 There's also an article which is page 6 of the English

2 translation. And my English translation of this article is -- of this

3 Croatian version is: "Six reasons why Slobodna is publishing Mesic's

4 testimony."

5 Do you see that article, Mr. Jovic?

6 A. Yes.

7 Q. In the middle of the page, on page 6 of the English translation

8 there's a sentence that starts with: "Firstly," which is the first reason

9 that Slobodna Dalmacija gives. I want you to confirm whether or not this

10 is an accurate translation of the Croatian. It says: "Stjepan Mesic is

11 no longer under any danger because there's no longer Tudjman or his media

12 or secret services, which were the reasons why he felt he should be

13 protected."

14 Is that a fair translation?

15 A. Yes.

16 Q. The second provision here that -- the second reason that you give

17 that you're violating the court order is that the body of editors has

18 decided to publish his testimony out of public interest. I'm paraphrasing

19 because it's a longer paragraph. But you're --

20 A. That's the third reason.

21 Q. Well, it starts with the phrase "secondly." The third reason is

22 very similar, yeah.

23 A. But it's not what you suggest, public interest, that's not in

24 connection with the second reason. It's in connection with the third

25 reason.

1 Q. Fair enough. Let me read the second reason then and there won't

2 be any dispute.

3 The second reason that you give is: "Mesic is presently the

4 president of Croatia and no longer an ordinary citizen, and if he doesn't

5 feel the need to reveal what he discussed" --

6 A. That's right.

7 Q. That you're going to do it for him is what you say. If he doesn't

8 feel the need to do it, you're going to do it for him, in contravention of

9 the court order. Is that right?

10 A. There is no contravention of a court order there, if you are

11 quoting me.

12 Q. The third reason that you give is that there's a big and

13 reasonable interest of the public for publication of the contents of the

14 testimony.

15 A. Of the present head of state.

16 Q. The fourth reason you give is that Mesic alone was the initiator

17 of the practice of the publication of secret documents.

18 Now, my question there is that by your own admission the first

19 leak of information was by the Defence counsel in the Blaskic case, so

20 this would be an inaccurate statement, would it not?

21 A. This statement is in relation to secret documents that not only

22 have to do with the ICTY but also with the transcripts from President

23 Tudjman's office that he distributed to journalists, and those were

24 classified documents. It's a matter of violation of a more general

25 principle.

1 Q. The fifth represent that you give is that the Tribunal in

2 The Hague has no competences over citizens of the Republic of Croatia.

3 Correct?

4 A. That's right. That's what it says. Nevertheless, this calls for

5 an explanation, and it's an explanation that I've already provided. There

6 is no direct competence.

7 Q. Mr. Jovic, if you've already provided an explanation, there's no

8 reason to provide a second one.

9 Let me just move quickly on to the sixth reason you give, which is

10 that you're publishing Mesic's secret testimony because one of those

11 entrusted with the confidentiality was Blaskic's Defence lawyer,

12 Anto Nobilo, who distributed the disk containing Mesic's testimony. Yes,

13 is that accurate?

14 A. Yes. That's what it says.

15 Q. None of these reasons comport with your explanation to the Court

16 today that you sought out a number of legal opinions that said the

17 material wasn't protected. So how do you explain that difference to this

18 Chamber today?

19 A. There is nothing contradictory there, nothing mutually exclusive.

20 I'm talking about the reason I'm interested in these documents. What I

21 said before was about the logic of law and about legal procedure.

22 Q. Mr. Jovic, without going into the rest of the issues of Slobodna

23 Dalmacija, this is December 6th. You publish more of Mesic's

24 closed-session testimony on December 7th, do you not?

25 A. Yes.

1 Q. And on December 8th?

2 A. We later continued.

3 Q. And you do the same on December 8th?

4 A. Let's put it that way.

5 Q. Up until December 29th. Correct?

6 A. Yes.

7 Q. And on each of these articles you indicate that this is the secret

8 testimony of a protected witness, Stjepan Mesic, in the Blaskic trial, do

9 you not?

10 A. Yes. That was declared to be a secret, as I said. However, a lot

11 had already been disclosed by this time.

12 Q. And in those 22 editions you published every single word of the

13 transcript of Stjepan Mesic in his closed-session testimony before this

14 Tribunal, did you not?

15 A. We published what we had. I'm not sure that that was all.

16 Q. I want to ask you one final question, Mr. Jovic, and it's a

17 statement that you made on page 57 of your transcript, about line 1. You

18 said something to the effect, and I'm paraphrasing because I don't have it

19 in front of me, but you didn't know that you were publishing something,

20 you thought you were allowed to publish it. Do you remember making that

21 statement? You didn't know that you were publishing something that was

22 protected, that you were allowed to publish. And if you don't recall, I

23 can have that statement -- your statement read to you.

24 A. I no longer remember myself what exactly it was that I said.

25 However, what I meant was -- I was believing that I was publishing

1 something that I had every right to publish and something that I was never

2 banned from publishing.

3 Q. And if you thought you had the right to publish this and that it

4 was not, in fact, protected, that would not allow you to state in a

5 dramatic brazen way, each and every day for 22 straight days, that this

6 was secret, protected material that would allow you to sell newspapers,

7 would it?

8 A. That's just a headline. It was automatically generated from one

9 issue to the next. It wasn't our intention to taunt, if that's what you

10 mean. As I said, it was a secret but a secret that had, to a large

11 extent, already been revealed. And by whom? By the very people involved

12 in the trial, all of them, in fact.

13 JUDGE ROBINSON: Mr. Ackerson, we are up against time.

14 MR. ACKERSON: I know. One last question, Your Honours, and it's

15 very brief.

16 Q. One of the opinions that you sought was Mr. Josipovic, Professor

17 Josipovic, that you're -- right, is that not correct?

18 A. Yes.

19 MR. ACKERSON: This is tab 8 of Exhibit 11. And I'll refer to the

20 Court page 1 of 6.

21 Q. Do you have that exhibit in front of you, Mr. Jovic?

22 A. Yes.

23 Q. And you state that one of the sources that you relied on for your

24 legal advice and consultation was Professor Josipovic, yes?

25 A. Yes.

1 Q. I just want to direct your attention to a clause. It's the bottom

2 of the page 1 of 6, and this is your -- the advice that you're getting

3 that you're relying on to come up with a different interpretation than the

4 cease and desist order. And I'm going to read you the English

5 translation. The sentence goes: "The Tribunal could change its decision,

6 should it realise that the reasons for which it declared some documents

7 confidential no longer exist."

8 Do you see that sentence?

9 A. Yes.

10 Q. It says -- the counsel that you got was and that you published in

11 your newspaper was that the Tribunal could change its decision. That

12 would suggest to me that you were obligated, if one wants to believe that

13 you had the right to seek alternative legal opinion, but your own counsel

14 is suggesting that you should apply to this Tribunal for a modification of

15 the cease and desist order, doesn't it?

16 JUDGE ROBINSON: Yes, Mr. Krsnik.

17 MR. KRSNIK: [Interpretation] Your Honours, again it's a

18 mistranslation, but this needs to be taken up with Mr. Jovic because the

19 meaning here is totally different. I think this needs to be clarified

20 because what the Prosecutor is saying is not accurate.

21 THE WITNESS: [Interpretation] Yes, this is more a comment on what

22 Mr. Josipovic originally said. Mr. Josipovic is obviously quite reserved,

23 himself, on this issue, as far as the formal and legal jurisdiction of the

24 court is concerned in this instance. Aside from that, he's not our

25 counsel officially. He's not here in an official capacity. And then in

1 this same piece we have opinions that are totally different. Zdravko

2 Tomac, take one example, he was the vice-president of the Croatian

3 parliament. There's another politician from another party who is also a

4 foremost legal expert in Croatia, Josko Moric. That's just an opinion.

5 MR. ACKERSON:

6 Q. The question I have for you: Is it an accurate translation, first

7 and foremost, because I can't read Croatian. But the English says: "The

8 Tribunal could change its decision, should it realise the reasons for

9 confidentiality no longer exist." "The Tribunal could change its

10 decision," is that what it says there?

11 A. I don't think that's what it says verbatim. I says --

12 JUDGE KWON: Just a second.

13 Mr. Ackerson, could you pay attention what is stated in page 12

14 of 12. Is it the identical passage? Why don't you give it a try to put

15 it to the witness. Here it says: "The Tribunal should change its

16 decision." It's slightly different.

17 MR. ACKERSON:

18 Q. Mr. Jovic I'm going to read to you a passage, it's going to take

19 me a moment to find where the Croatian version of this is, though. This

20 must be an insert box which is at the end of an article which is

21 entitled -- it's written by Ante -- I'm going to massacre this name, but

22 Zuzo or Gujo. And the article is entitled: "The President needs the

23 international tribunal" --

24 There's an insert box at the end of that article, and I'm going to

25 put this to you for your comment, Mr. Jovic. "This is the first case" --

1 and tell me if you see this insert box. "This is the first case in which

2 the International Criminal Tribunal addresses the media through a separate

3 order in any state. If viewed from a formal and legal point of view this

4 Tribunal has the competence for such conduct. However, every decision

5 delivered by the Tribunal, including this one, is a subject of criticism

6 and further investigation. The Tribunal should change its decision in the

7 case of expiry of reasons why some materials have been declared

8 confidential."

9 Do you see that?

10 A. Yes, I do.

11 Q. "The Tribunal should change its decision."

12 A. Perhaps you could finish reading that.

13 Q. "They should do the same in the case if there no longer exist

14 security reasons which would be preponderant in relation to the obvious

15 interests of the public to find out a certain detail from the hearing,

16 said Professor Josipovic."

17 "They" in this case being the Tribunal, no?

18 A. What it should do, that's in reference to the Court, isn't it,

19 that the Court should do this. That's his suggestion.

20 Q. The point being: He's not saying that you should do this; he's

21 saying that the Court is obligated to make this change, isn't he? I

22 need --

23 A. Yes, that's what he says.

24 Q. Thank you very much.

25 MR. ACKERSON: No further questions.

1 JUDGE ROBINSON: Yes, Mr. Krsnik, briefly.

2 Re-examination by Mr. Krsnik:

3 Q. [Interpretation] Mr. Jovic, I was under the impression that we had

4 sufficiently clarified matters, but upon hearing the cross-examination and

5 the questions by Judges I want to clarify the following. What were you

6 waiting for from the Croatian authorities? Were you waiting for an order

7 to be issued on the part of the Croatian judiciary or were you waiting for

8 something else? Please tell us, were you waiting for a ruling by the

9 judiciary?

10 A. Yes, that's precisely what I was waiting for.

11 Q. Why don't you tell us this?

12 A. I believed that I had stated this clearly enough.

13 Q. Well, that's not the case.

14 A. I was expecting some sort of a position, a ruling, or any sort of

15 opinion by some official authority of the Republic of Croatia --

16 JUDGE ROBINSON: Yes.

17 MR. ACKERSON: Your Honour, aside from the fact that it's probably

18 beyond the scope of my examination, it's --

19 JUDGE ROBINSON: I don't think it is.

20 MR. ACKERSON: -- been asked and answered.

21 JUDGE ROBINSON: It may have been leading.

22 MR. ACKERSON: That's the third and final -- it's extraordinarily

23 leading and that would be my own --

24 MR. KRSNIK: [Interpretation] We'll rephrase the question.

25 JUDGE ROBINSON: Don't lead -- I suggest you go ahead, proceed.

1 MR. KRSNIK: [Interpretation]

2 Q. I don't know if this is a leading question if I say: Were you

3 expecting the Croatian court to pass down a ruling banning you from

4 publishing the documents any further? Is this a leading question? Were

5 you expecting this?

6 JUDGE ROBINSON: That's leading. That's leading. You would have

7 to ask him what he was expecting or tell him what he should expect.

8 MR. KRSNIK: [Interpretation]

9 Q. Mr. Jovic, I will not put any further questions to you, but you

10 can see that this matter has not been clarified.

11 What were your expectations, what did you expect, and what were to

12 be your follow-up steps? And please focus. I think this is the core of

13 misunderstanding here.

14 A. In view of the fact that the Croatian authorities had received the

15 same or a similar order from the ICTY, I was waiting for their reaction,

16 namely an order or a ruling banning any further publication of the

17 transcripts. Since I received no such rulings, I sought suggestions.

18 Q. Could you please be more precise. What sort of suggestions or

19 opinions were you seeking?

20 A. I wanted to obtain an opinion that I was not breaking the law.

21 Q. Who were you asking these opinions from?

22 A. From the public prosecutor's office in the Republic of Croatia.

23 Q. Had you received any such order from a Croatian court?

24 A. I would have complied with it.

25 Q. An order from whom?

1 A. From the public prosecutor's office or a court.

2 Q. Which court? Could you please be specific?

3 A. From the -- from a court of the Republic of Croatia, be it

4 municipal or county court.

5 Q. You mentioned your arrest and detention. Can you explain that?

6 A. I was arrested pursuant to a ruling by the county court of Split,

7 which followed after the ICTY had issued an -- a warrant for arrest --

8 JUDGE ROBINSON: [Previous translation continues] ...

9 MR. KRSNIK: [Interpretation] Your Honour, I fully respect any

10 instructions from you. I am not versed in common-law procedure, and I'm

11 trying to explain my case on the basis of mens rea, because as you were

12 able to see the witness is answering my questions sincerely, but we have

13 to clarify matters. Was he -- did he know or didn't he know, because do

14 you really believe that people in Croatia understand the meaning of an

15 order or the difference between an out-of-court and in-court testimony.

16 Q. Mr. Jovic, do you have any legal experience? Are you a lawyer?

17 A. No.

18 Q. Are you familiar with the law system in the Republic of Croatia?

19 A. Just as any other ordinary citizens would be.

20 Q. Do you know the procedure before the Tribunals? Do you know that

21 there's a difference between the investigating procedure and trial?

22 A. I do.

23 MR. KRSNIK: [Interpretation] I still have questions of the

24 witness, Your Honours, we still have to clarify certain matters.

25 JUDGE ROBINSON: My idea is that we have to finish today and in

1 ten, 15 minutes. So I'm going to allow five minutes for closing

2 addresses. Issues are fairly clear.

3 [Trial Chamber confers]

4 MR. KRSNIK: [Interpretation] If the matters are clear enough, I

5 have no further questions, Your Honour.

6 [Trial Chamber and legal officer confer]

7 JUDGE ROBINSON: Mr. Krsnik, I just want to make sure, have you

8 finished your re-examination?

9 MR. KRSNIK: [Interpretation] Yes, Your Honour. Your Honour stated

10 that the matters are clear, and I decided that there was no need for me to

11 further re-examine the witness.

12 JUDGE ROBINSON: We'll have seven minutes each for --

13 [Trial Chamber confers]

14 JUDGE ROBINSON: Before the closing addresses, I have to say that

15 the Chamber will admit the five exhibits that the Defence has sought to

16 produce. We will not allow the additional two witnesses. They are both

17 to deal with issues of mens rea, and the Chamber considers that it has

18 heard enough evidence in relation to that issue.

19 For the closing addresses, seven minutes each. Mr. -- Who is to

20 begin? Mr. Ackerson.

21 MR. ACKERSON: Thank you, Your Honour. Perhaps the most

22 important, pivotal bit of evidence that you heard occurred just five

23 minutes ago, and it was at line 108 -- I'm sorry, page 108, line 16 of

24 your transcript, and Mr. Jovic says in response to a question: What kind

25 of legal opinions were you seeking after he got the cease and desist

1 order? And his answer was: "I wanted to obtain an opinion that I was not

2 breaking the law." Now, he receives a cease and desist order on December

3 1st, which is crystal clear. It's served on his newspaper. He's the

4 editor-in-chief, he fully acknowledges that he receives it. He publishes

5 it in his paper. He proceeds to issue 22 -- 25 issues of his newspaper

6 that clearly indicate that he knows exactly what this order is telling him

7 that he can't do and that he's intentionally and brazenly violated. Now,

8 his reason, or his defence today is that he obtained other legal opinions

9 and that those other legal opinions, according to him, allowed him --

10 differed from the cease and desist order interpretation, that the material

11 wasn't protected.

12 And so there's a number of responses to that. First of all, one

13 of those legal opinions clearly didn't say that; Mr. Josipovic. Secondly,

14 if you, as a Chamber, allow third parties, such as newspapers, to

15 second-guess an order of a Trial Chamber, I would submit you're opening a

16 door to watering down your ability to control these proceedings. We ask

17 witnesses to come here and testify under life-threatening conditions. And

18 they do so because we assure them that we can guarantee their

19 confidentiality when we testify in closed session. And that's a decision

20 that you, as Judges, have to make after hearing the arguments of the

21 parties. And those decisions are not going to be perfect, but those

22 decisions have to be respected. They have to be sacrosanct. And if you

23 deviate from that policy, we cannot rightfully ask witnesses to come in

24 and look them in the eye and tell them that our guarantees of

25 confidentiality, even when ordered by a Court, will be backed up by this

1 Tribunal. So we're asking you to back up your own word -- this was the

2 Blaskic Trial Chamber that heard the arguments of the parties, and that's

3 an exhibit in the binder, and the arguments of the parties laid out the

4 fact that Mr. Mesic, President Mesic -- the Defence counsel in the Blaskic

5 case had leaked his witness statement and that that had been publicised by

6 the newspapers. That was taken into account by the Blaskic Trial Chamber.

7 And they heard parties from -- they heard arguments from Defence counsel

8 on the issue, they heard the arguments of the Prosecution, and they

9 decided to allow President Mesic to testify in closed session. That order

10 has to be backed up by this Trial Chamber.

11 What Slobodna Dalmacija did was intentionally and repeatedly

12 violate this court order, and why they did it doesn't really matter.

13 Whether they were trying to sell newspapers, whether they were politically

14 motivated, the simple case is that this is not a case about damage to

15 President Mesic; this is a case about violating a court order. And as

16 this Chamber decided in the Bulatovic decision in Milosevic, that a

17 knowing and wilful interference with the administration of justice

18 necessarily follows when someone defies a court order, and you have no

19 clearer example of a defiance of a court order than you have right now,

20 and you cannot allow a third party such as a newspaper to forum shop for a

21 different legal opinion to avoid the force and effect of a Court order,

22 because I can tell you that, you know, by way of metaphor, if someone is

23 charged with possession of cocaine in a country, there will be lots of

24 people who will say that drug laws are invalid and improper and, in their

25 opinion, they should not be respected. It's the law and the Court's order

1 that matters, and ignorance of the law is not a defence.

2 I will say one other comment because it has been raised by this

3 Chamber about the delay in the prosecution. This occurred in 2000. The

4 indictment was brought in 2005, and I would just direct the Court's

5 attention that when this occurred, in the 29 issues where Slobodna

6 Dalmacija, and specifically 25 issues where they were repeatedly and

7 directly violating a cease and desist order, the Prosecution issued four

8 notices to the Blaskic Trial Chamber, indicating that there were repeated

9 violations of the cease and desist order. On January 26th, 2001, the

10 Blaskic Trial Chamber issued a decision that said two things: One, that

11 it was directing the Registry to conduct an investigation. In essence,

12 they were conducting their own investigation, but it was the Registry that

13 was going to be doing it for the Chambers; and they said they remained

14 seized of the matter, that they noted that the Prosecution had made four

15 notices of these violations, and they remained seized of the matter. And

16 they proceeded to remain seized of the matter until May of 2005, when they

17 finally directed the Prosecution to conduct its own investigation. And at

18 that point, six weeks later, we filed the indictment against Mr. Jovic.

19 So the matter was not in the hands of the Prosecution during that time.

20 We filed proper notice when the violations were occurring, and we took six

21 weeks to file an indictment once we were given the authority to do so.

22 Thank you very much. I appreciate the opportunity --

23 JUDGE KWON: Mr. Ackerson, I only regret not having enough time on

24 this, but I wonder if you have anything to comment upon the issues raised

25 by the Defence which is related to freedom of media or right of the public

1 to know. And this is related to the -- to a president of a republic and

2 apparently there seems to be no more reasons for protective measures.

3 MR. ACKERSON: The first response that I would make to that

4 argument -- because that is I think superficially an interesting argument,

5 but if you explore it I don't think it is -- it has much merit. What you

6 do in the serious cases that you try involves high-ranking political

7 figures and high-ranking military figures, and they often are going to be

8 given protections, either in the form of pseudonyms or closed-session

9 orders, despite the fact that they are public figures because they are

10 willing to come forward on those guarantees. The important thing in this

11 case that Mesic was a well-known figure in Croatia, and that was part of

12 the arguments that was put forward very clearly by Blaskic's Defence

13 counsel that Mesic should not be allowed to testify in closed session.

14 Once the Court decided that he should testify in closed session, the issue

15 is no longer a free-speech issue, it is merely an issue of whether or not

16 a third party can interpret a Court's order and in its own mind determine

17 that it has been lifted. What the Defence is asking you to do is to say

18 that once somebody violates the closed-session order, it's now public

19 domain, and therefore a criminal act or a contemptuous act is the same as

20 a court order lifting that protection, and that will have disastrous

21 consequences for us. Because the reality is that there are leaks. There

22 are unintentional leaks sometimes here, and if you equate a court order

23 with those actions, we have very little ability to protect our witnesses.

24 JUDGE KWON: [Microphone not activated].

25 MR. ACKERSON: Thank you, Your Honour.

1 JUDGE ROBINSON: Mr. Krsnik.

2 MR. KRSNIK: [Interpretation] Your Honours, I haven't heard such

3 hypocritical comments as put forward by my learned friend from the

4 Prosecution for a long time, especially in response to Judge, His Honour,

5 Kwon's question.

6 Well, suffice it to say that back in 1998 Mr. Mesic was not a

7 president and that he was accorded protective measures. It was in January

8 of 2000 that he was elected president and then enjoyed all the protection

9 that a president enjoys. But before that period, there weren't such

10 reasons in place. Your Honours, we are a small people, but nevertheless

11 we watch closely what is going on.

12 The only thing that someone had to do from the ICTY was to phone

13 President Mesic and ask him whether these protective measures were still

14 necessary or not, because we need to have transparency in our country.

15 Gentlemen, when are we going to make trial records public? In 100

16 years. If we listen to what the Prosecutor is saying, this will never

17 become open. Is that really the purpose of this institution? I don't

18 wish to respond to such arguments at all.

19 The Prosecution is manipulating the Trial Chamber. It is looking

20 for a precedent, and it wants you to send the following message to the

21 Balkans: Journalists over there, we will not inform you of anything

22 because we have witnesses coming here blackmailing us and telling us that

23 they will not testify unless it's in closed session.

24 But that is not the point of trials. Why don't we put the

25 question to the Prosecution? Why didn't the Prosecution phone President

1 Mesic and ask him whether the protection accorded to him was still

2 necessary and what was the -- what were the measures to protect him from?

3 Don't forget that President Bush came to testify in front of the

4 international court of -- imagine what would happen if he came to testify

5 here before the International Court of Justice in The Hague? We are

6 advocating the principle of equality before the law, but I'm afraid that

7 not all of us are equal before the law, especially in some countries that

8 are not stable democracies.

9 My government did not react when this order was issued. The

10 government should have said: Stop, we have the constitutional law in

11 place, and Mr. Granic and the government stated that. You cannot issue

12 orders to citizens. Let us debate this issue before a court of law, as

13 was, in fact, the case when the Ministry of Defence was issued with a

14 subpoena. And then it was the Appeals Chamber that came to the conclusion

15 that the minister could not be asked to testify.

16 The same should have been done in this case. The government

17 should have looked into the matter, and I'm sure that the journalists,

18 together with Mr. Jovic, would have waited for the outcome of that debate,

19 as he did in fact wait for six days.

20 Mr. Ackerson said that this was quite clear, but I'm sure that

21 nobody in Croatia finds this to be clear, especially not a journalist.

22 That is why he was waiting for a court of law in his own country to tell

23 him what he was supposed to do. The government should have reacted,

24 because under international law, if its own citizen is charged with a

25 criminal conduct, it has to be -- his extradition has to be decided upon.

1 The same is true in this case where the freedom of the media was involved.

2 Nobody could have incurred any consequences as a result of that. The

3 Prosecutor said that a closed session a sacrosanct, but that's not true

4 and cannot be true.

5 Your Honours --

6 JUDGE ROBINSON: Why, Mr. Krsnik -- something's just not clear to

7 me. After seeking the advice of the public prosecutor's office, or

8 waiting, as you said, on some kind of a decision from the courts, why did

9 he nonetheless accompany the publication with a statement that he knew the

10 publication was in violation of a -- of the order of the Tribunal?

11 MR. KRSNIK: [Interpretation] Your Honour, the matter is quite

12 simple, and I will try to fully explain it.

13 The government, the Ministry of Justice, charged the prosecutor's

14 office of the Republic of Croatia to give their legal opinion whether

15 Mr. Jovic had been breaking the law or not. The Ministry of Justice of

16 the Republic of Croatia had sought this sort of advice from the Croatian

17 public prosecutor's office.

18 The Croatian public prosecutor's office responded by saying that

19 he had not been breaking any laws, especially not those of Croatia, and

20 that he could carry on publishing the documents. The government did the

21 same. They sought the opinion of the public prosecutor's office. The

22 government and the public prosecutor's office -- or rather, the government

23 entrusted the public prosecutor's office to examine whether he was in

24 breach of the law, be it international or domestic. And the public

25 prosecutor's office response was that he was in breach of no law, be it

1 international or domestic. That was why we were referring to the

2 document, the written opinion, that was made and which you should seek

3 through a subpoena.

4 As a result of the information he was given, what sort of a

5 conclusion could he arrive -- have arrived at but to continue publishing?

6 Mr. Jovic testified truthfully before the Chamber. The only thing that

7 remained for him was to make sure his paper was being sold, and of course

8 resorting to the poetic license. But he had not been given a single

9 indication, nor have I heard anything from the Prosecutor today, to show

10 that he should have had a different understanding of the matter. You were

11 able to hear what Mr. Jovic's reasoning was. What we were hearing from

12 the other side was simply matters from the realm of conjecture and

13 surmise, far from evidence.

14 I have to say that Mr. Mesic was not afraid, Mr. Mesic is not a

15 coward. Mr. Mesic always publicly spoke his mind. He was always a

16 courageous politician even at the time of Yugoslavia. When he came into

17 conflict with Tudjman, he always adhered to his principles and he always

18 spoke publicly.

19 JUDGE ROBINSON: We have to vacate this courtroom in two minutes.

20 The tape runs out.

21 MR. KRSNIK: [Interpretation] Your Honours, do not render a

22 decision in favour of this indictment because you will deprive every

23 single journalist in the world to follow these trials. Because the

24 journalist is not to blame; the one who is to blame is the one who

25 disclosed this information from the courtroom. Besides, there were other

1 papers and other journalists who published the same information and who

2 were not indicted, and that's hypocritical.

3 Thank you very much.

4 [Trial Chamber confers]

5 JUDGE BONOMY: Mr. Jovic, are you still the editor-in-chief of the

6 newspaper?

7 THE WITNESS: [Interpretation] No, not for the last four years.

8 Not since 2001. I'm now a commentator.

9 JUDGE BONOMY: Thank you.

10 [Trial Chamber confers]

11 MR. KRSNIK: [Interpretation] Your Honours, excuse me, I forgot

12 about the disposition. Can I come on my own for this to be disclosed

13 without Mr. Jovic so that when the judgement is rendered ...

14 JUDGE ROBINSON: We'll decide that and let you know.

15 MR. KRSNIK: Thank you very much.

16 JUDGE ROBINSON: Mr. Ackerson.

17 MR. ACKERSON: I'm sorry, Your Honour. I know we need to get out

18 of here, but I just think for the record that I need to say something

19 regarding aggravating and mitigating factors, otherwise it's going to be

20 conspicuously absent.

21 JUDGE ROBINSON: In writing.

22 MR. ACKERSON: Fair enough. I'll submit that in writing.

23 JUDGE ROBINSON: Very well. We thank the parties for the

24 submissions, and we'll consider the matter and give our decision shortly.

25 --- Whereupon the hearing adjourned at 2.01 p.m.