Gotovina Defence Asks Judges to Press EU for Documents

Lawyers of former Croatian general Ante Gotovina have asked judges to order the European Union to “step up its efforts” to locate what they say are crucial missing documents that could prove their client’s innocence on certain charges.



The request from the defence team of the general – who is on trial for war crimes in The Hague – comes after the Secretary General of the Council of the European Union, Javier Solana, informed the court that certain documents sought by Gotovina’s defence team from the EU archives may not exist.



“The claim made in the motion by the Gotovina defence of March 20 that the ‘the missing documents.. were certainly created and certainly existed at one time’ is doubtful,” wrote Solana in a response to Judge Alphons Orie, who had ordered the EU to respond fully to the Gotovina team’s request for access to documents in its archives.



However, Gotovina’s lead counsel, Luka Misetic, contends that at least 51 of a total of 80 missing documents do exist and that Solana has prevented him from getting his hands on them since his team first sought them back in 2007.



“Solana refused to cooperate at every turn,” Misetic told IWPR. “Now the documents are missing and again he is not cooperating.”



The EU rejects the allegations of Gotovina’s lawyers, explaining that it has done everything asked of it by the court in terms of disclosing the documents.



Solana states in his letter to Judge Orie, who is presiding over the case, “The Gotovina defence was given full access to these [European Commission Monitoring Mission, ECMM] archives in an unrestricted and unredacted form on March 10, 2008.”



Cristina Gallach, Solana’s spokeswoman, told IWPR, “We have given the Gotovina defence access to the ECMM archives and complied in full with the order of the tribunal of February 28, 2008.”



Of particular concern to the Gotovina defence team are daily log reports of the ECMM Regional Centre Knin, from between August 4 and 15, 1995.



Such reports, it says, contain hourly or even minute-by-minute updates on the situation on the ground during Operation Storm and could provide evidence showing that their client is not guilty of indiscriminate shelling in the Krajina region in 1995.



“Based on the ECMM commentary in its weekly reports, the Gotovina defence believes that the ECMM log reports are likely to be exculpatory for General Gotovina and will refute allegations of indiscriminate shelling,” the lawyers wrote to judges following Solana’s letter of April 17.



Gotovina is standing trial alongside two other senior Croatian military and police commanders Mladen Markac and Ivan Cermak for the illegal shelling of towns across the Krajina region of Croatia during the 1995 military attack known as Operation Storm.



The men are charged with a campaign which allegedly involved the killing of civilians, the burning of houses and looting of property in a bid to drive Serbs out of the area and prevent their return.



On February 28, 2008, judges in The Hague ordered that the EU grant Gotovina’s lawyers access to the ECMM archives which it duly did on March 10 last year. However, the lawyers claim that as many as 80 documents were missing from the archive.



But in a letter written by Solana on April 17 to Judge Orie, the former says that as far as possible, it complied fully with the Gotovina team’s request when its lawyer, Zoran Zugic, inspected the archives in March 2008. He says 24 of the documents that Gotovina’s lawyers claim are missing are in fact in the archive they inspected in March 2008.



“Twenty four of the documents claimed to be ‘missing’ are in fact contained in the ECMM archives, and were at the disposal of Mr Zugic on 10 March 2008. However, they were not requested by him,” wrote Solana, without giving details of the contents of those documents.



However, Gotovina’s lawyers are doubtful of Solana’s claim, explaining that their team searched the archives and the tribunal’s office of the prosecutor did so twice, but neither party found the 24 documents.



They have asked that the EU now be ordered to hand them over.



Beyond these 24 documents, Gotovina’s lawyers claim there are 27 documents remaining that are not in the archive and must exist.



According to Misetic, the missing documents could exonerate his client on charges of persecution and deportation which the prosecution alleges was largely carried out through a campaign of indiscriminate shelling against civilians.



Solana says that the existence of the documents is “hypothetical” as, according to ECMM reports, monitoring teams that would have made such records were not operating during certain periods in August 1995 due to restrictions on their freedom of movement.



But Gotovina’s lawyers says they have proof that the missing documents do exist and cite other documents detailing the ECMM’s whereabouts in the area on different days during August 1995.



“There is simply no excuse for why these documents would not have existed or wouldn’t have been produced,” Misetic told IWPR.



Misetic noted that these documents may be part of 24 documents that Solana acknowledges are in the ECMM archive.



Misetic and his colleagues also allege that Solana has a conflict of interest in handling their request for the documents following allegations they say he made in 1995 about the illegality of Operation Storm. As Spain‘s foreign minister and Chairman of the EU Council of Ministers, on August 6, 1995, he alleged that the Croatian army was shelling civilian areas and was therefore guilty of war crimes, Gotovina’s lawyers contend.



Misetic and his colleagues challenge the allegation that Gotovina is guilty of war crimes through indiscriminate shelling and say that, having adopted such a position in 1995, Solana should not be in charge of locating the sought for documents.



“We would like someone who was not involved at the time to take charge of finding these documents,” said Misetic.



“There’s an appearance of conflict [of interest] and it should be delegated to someone with no personal involvement.”



Solana’s office was unable to address the remarks he allegedly made about Operation Storm.



However, it denied that there was any conflict of interest concerning his position in answering the Gotovina lawyers’ requests.



“We have found there is no substance whatsoever to allegations made by the Gotovina defence. They are both factually incorrect and misleading,” Gallach told IWPR.



The EU further insisted that it had provided full access to documents for which it is able to do so.



“We have carefully analysed the motion submitted by the Gotovina defence and have again consulted [ECMM] archives,” said Gallach. “We have, on Friday April 17, answered the court as we have been asked to do.”



Simon Jennings is an IWPR reporter in The Hague.