1 Monday, 21 March 2005
2 [Initial Appearance]
3 [Open Session]
4 [The accused entered court]
5 --- Upon commencing at 8.00 a.m.
6 JUDGE AGIUS: Yes, good morning, Madam Registrar. Could you call
7 the case, please.
8 THE REGISTRAR: Good morning, Your Honour. Case number
9 IT-04-82-I, the Prosecutor versus Johan Tarculovski.
10 JUDGE AGIUS: I thank you. Mr. Tarculovski -- Mr. Tarculovski --
11 please, Usher, make sure that he is on the right channel. Before I
12 proceed any further, I want to make sure that you are receiving
13 interpretation in your own language.
14 THE ACCUSED: [Interpretation]: No.
15 JUDGE AGIUS: That's problem number 1. Eight o'clock on a Monday
17 Are you receiving interpretation now?
18 THE ACCUSED: [Interpretation] I'm receiving the Albanian language
19 and not Macedonian.
20 JUDGE AGIUS: Yes. But we need to check --
21 THE ACCUSED: [No interpretation]
22 JUDGE AGIUS: Are you receiving interpretation now?
23 THE ACCUSED: Yes.
24 JUDGE AGIUS: You are receiving interpretation now. All right.
25 For the time being, let's -- the most important thing that I wanted to
1 make sure of, if at any time you are not receiving interpretation, please
2 draw my attention immediately. Okay, thank you, you may sit down for the
3 time being.
4 Yes, appearances for the Prosecution.
5 MR. SCOTT: Good morning, Your Honour. Kenneth Scott for the
6 Prosecution. With me this morning is Mr. William Smith and our case
7 manager, Mr. Hasan Younis.
8 JUDGE AGIUS: I thank you, and good morning to you and your team.
9 Mr. Tarculovski. And I take it that for the purpose of this
10 initial appearance, you have decided or you have asked to represent
11 yourself; in other words, you have chosen not to be assisted by counsel.
12 Am I correct?
13 THE ACCUSED: [Interpretation] Your Honour, I don't have an
14 opportunity for my attorney to be present here.
15 JUDGE AGIUS: But that's different. Did you ask the Registrar to
16 provide you with counsel, even if it was only for the purpose of this
17 initial appearance?
18 THE ACCUSED: [Interpretation] I asked strictly for it to be my
19 attorney, if that is possible.
20 JUDGE AGIUS: I would need to verify this, but for the time being,
21 did you choose to represent yourself during today's initial appearance?
22 THE ACCUSED: [Interpretation] I would like to use my legal
23 possibility. I would like to use the legal time frame of 30 days to make
24 my statement.
25 JUDGE AGIUS: Well, I don't think that was the question that I put
1 to you. I was informed that you asked to represent yourself today during
2 this initial appearance. In other words, that this is your choice, only
3 for today's initial appearance. Did I get the right information, the
4 correct information? Or is it the wrong information?
5 THE ACCUSED: [Interpretation] Your Honour, I asked my initial
6 appearance to be postponed until after my attorney arrives.
7 JUDGE AGIUS: Well, we can't do that. I can't postpone the
8 initial appearance for the reason that you have mentioned. The practice
9 here is that if it is not possible at all for the Registrar to approve or
10 to approve and appoint, designate the attorney, counsel of your choice,
11 then for the purpose of the initial appearance, another counsel
12 is appointed. He will serve you for the purpose of the initial appearance
13 and then he or she will disappear from the scene. So you create a little
14 bit of a difficulty for me this morning, because I need a straightforward
15 answer from you.
16 There is no point in waiting necessarily for the initial
17 appearance until you have your own lawyer, the one you have chosen
18 approved by this Tribunal, because at the end of the day, he may not be
19 approved. I'm not saying he will not, but I don't know who he is and I
20 have nothing to do with the appointment.
21 Short of that, there are two options. Either we proceed today
22 with you representing yourself, if that is your choice, or else I stop
23 here and I will have the initial appearance tomorrow or the day after and
24 the Registrar will appoint for you another lawyer, not the lawyer that you
25 want from Macedonia or from wherever, but a lawyer who will act as duty
1 counsel and who will appear and represent you only for the purpose of the
2 initial appearance. So there are these two alternatives and you need to
3 tell me which one you prefer, if at all. Because if you remain silent,
4 then of course I will have to take a decision on my own.
5 THE ACCUSED: [Interpretation] I would like to represent myself.
6 JUDGE AGIUS: I thank you. And I can also assure you,
7 Mr. Tarculovski, that that being the case, I will make sure that all your
8 legal rights arising out of the Statute and also our Rules, especially as
9 they relate to today's initial appearance, will be strictly observed and
10 respected. I will do that myself.
11 Before we proceed, I am also informed, actually, that you did sign
12 a letter or a declaration which you handed to the authorities of this
13 Tribunal, to the Registrar, stating for all intents and purposes that you
14 had decided already to represent yourself at this initial appearance. Is
15 that correct?
16 THE INTERPRETER: I couldn't hear him, but I suppose --
17 JUDGE AGIUS: He said "yes." I heard him. All right. Before I
18 ask you to sit down, Mr. Tarculovski, there is an important right that you
19 enjoy not only today but throughout all of the proceedings that will
20 follow, until the closing of the end of the trial and any other
21 proceedings that may follow, and this right is fundamental to due process
22 and a fair trial, and that is your right to remain silent, your right not
23 to incriminate yourself, your right not to be forced to answer any
25 I also, however, have to advise you that should you not opt to
1 remain silent, whatever you say will go into the record, and as such,
2 could constitute evidence. Do you understand me?
3 THE ACCUSED: [Interpretation] Yes.
4 JUDGE AGIUS: Okay, you be seated. I will proceed first with
5 giving a summary of the indictment. This is particularly -- I consider it
6 particularly important, especially in those cases where the accused
7 chooses not to have the indictment read out, so that members in the public
8 gallery, and I see very few, but also the public in general that may be
9 following these proceedings from their homes or elsewhere, would be able
10 to know precisely what the case is all about, and this is also necessary
11 according to me because this Tribunal is tasked with also looking after
12 the interests of the victims.
13 The proceedings, today's proceedings, because of the limitations
14 that we have, are being interpreted in Macedonian, which is the accused's
15 language, but also in Albanian, apart, of course, from the English and
16 French, also in Albanian because that, in the assessment of me, myself as
17 the Pre-Trial Judge for the purpose of this initial appearance, is the
18 language of the victims.
19 You, Mr. Tarculovski, along with another co-accused, Ljube
20 Boskoski, you were included and you are included in an indictment with
21 case number IT-04-82, which was signed on the 22nd of December of 2004.
22 This indictment was confirmed by my colleague, His Excellency Judge
23 Patrick Robinson on the 9th of March of this year and it was made public
24 by a decision of the same judge on the 15th of March of this year. I am
25 informed that you arrived at the seat of this Tribunal last week. To be
1 exact, on the 16th of March.
2 According to the indictment, Mr. Tarculovski, you were born on the
3 17th of November, 1974 in Skopje, in the Republic of Macedonia of the
4 Socialist Federal Republic of Yugoslavia. In 2001, according to the
5 indictment, you were a police officer acting as escort inspector to the
6 president's security unit. Your duties included providing personal
7 secretary for the president of the former Yugoslavia Republic of
9 The Prosecutor also alleges that you were a member of the internal
10 Macedonian revolutionary organisation, to wit: The Democratic Party for
11 Macedonian National Unity. The Prosecution alleges that a state of armed
12 conflict existed at all times relevant to the indictment on the territory
13 of the former Republic of Macedonia.
14 In this regard, I would like to draw the Prosecution's attention,
15 that although this is stated in, preeminently in one part of the
16 indictment, at the same time and in the same breath, you are alleging that
17 the conflict ended with the orat peace accord on the 13th of August, but
18 anyway, I take it for whatever it's worth.
19 According to the indictment, you are charged with individual
20 criminal responsibility pursuant to sub-article 1 of Article 7 of the
21 Tribunal's Statute. I will try to explain very briefly how the
22 Prosecution is attributing to you individual responsibility, in other
23 words in what form. The Prosecution is alleging that you committed,
24 ordered, planned and instigated the crimes charged in the indictment to
25 which I will come very shortly.
1 The indictment states that you aided and abetted, in addition, the
2 crimes charged in the indictment. By using the word "committing," the
3 Prosecution is not alleging that you physically perpetrated any of the
4 crimes charged, rather, "committing" is being used in the indictment as
5 participation in a joint criminal enterprise.
6 What is this joint criminal enterprise in terms of the indictment?
7 The indictment is alleging that you were a member, as I have just stated,
8 of a joint criminal enterprise which came into existence no earlier than
9 Friday the 10th of August, 2001 and continued up to and including Sunday
10 the 12th of August, 2001. According to the indictment, the object of this
11 joint criminal enterprise was to direct an unlawful attack on civilians
12 and civilian objects, which was not in any way justified by military
13 necessity, and the attack took place on the village of Ljuboten, a
14 predominantly ethnic Albanian village, about 12 kilometers distant from
15 Skopje, which is the capital of the former Yugoslav Republic of Macedonia.
16 You are basically charged with three counts of violations of the
17 laws or customs of war pursuant to Article 3 of this Statute, which is, in
18 turn, based on the Geneva Conventions. One is murder, second is wanton
19 destruction of cities, towns or villages, and third, but not least, cruel
21 I will go through these one by one. In Count 1 you are being
22 charged with murder. According to the indictment, during the attack on
23 Ljuboten, which took place on Sunday, the 12th of August, 2001, members of
24 a police unit, commanded by you, first entered the yard of Rami Jufusi's
25 house, and shot him as a result of which he died two hours later.
1 Afterwards, you and members of the police unit arrived at the site of two
2 houses where an armed man, women and children had sought refuge from the
3 attack of the police and the army. The police ordered the men out of the
4 basement and forced 13 of them to lie on the ground, where they were all
5 beaten up repeatedly and severely. A certain Sulejman Bajrami attempted
6 to escape. He was shot dead. Another man, Atulla Qaili, died the
7 following day as a result of those beatings and further beatings received
8 whilst he and the other men were being transported from Ljuboten to
9 Mirkovci police station.
10 The indictment further alleges that after these two incidents, the
11 police ordered ten of the 12 remaining men to walk towards the
12 neighbouring Macedonian village of Ljuboten. The remaining two men, both
13 elderly, were ordered to leave the area by the police and as these two men
14 walked away, the police fired at them, killing Muharem Ramadani, a
15 65-year-old ethnic Albanian.
16 The indictment further alleges that later on in the day, you,
17 Mr. Tarculovski, and members of the police unit under your command moved
18 to a house where five unarmed men had taken refuge. After calling out for
19 the owner of the house, the police unit opened fire on it and set fire to
20 it, using gasoline. When the men inside the house tried to escape, the
21 police unit shot at them, forcing them to run towards the mountain behind
22 the house. Three ethnic Albanians on this occasion, namely, Xhelal
23 Bajrami, Bajram Jashari and Kadri Jashari, were shot dead. That is as
24 regards to the first count.
25 In the second count, the Prosecution is bringing against you a
1 charge of wanton destruction of cities, towns or villages, again in
2 violation of Article 3 of our Statute. According to the indictment,
3 during the attacks on Ljuboten village on Sunday the 12th of August, 2001,
4 Johan Tarculovski and members of the police unit commanded by him walked
5 through Ljuboten and intentionally set alight at least 14 houses. In
6 addition to setting fire to houses, the police also damaged houses by use
7 of hand grenades and small arms. As a result of these acts, 14 houses
8 were seriously damaged or destroyed. This is the factual background to
9 count 2, which contains a charge of wanton destruction of cities, towns,
10 and villages.
11 In count 3, you are being charged with cruel treatment, again as a
12 violation of Article 3 of the Statute of this Tribunal. The indictment
13 alleges that between the 12th of August and the 21st of August, 2001,
14 during and after ground attacks on Ljuboten, you and members of your
15 police unit detained over 100 ethnic Albanian male residents of the
16 village at various locations and intentionally inflicted severe pain or
17 suffering to them by beatings, humiliation, harassment and psychological
18 abuse. These residents were cruelly treated both within Ljuboten, and the
19 indictment specifies at two police checkpoints nearby, as well as outside
20 the village, namely at five police stations in Cair municipality and
21 Skopje city, as well as at a Skopje court and hospital.
22 The Prosecution alleges that cruel treatment first occurred both
23 outside the village where a group of 13 residents was beaten at Adem
24 Ametovski's house and outside Ljuboten where a further group of 90 male
25 residents was detained at a police checkpoint a few kilometres from the
1 village. At least half of these men were physically and psychologically
3 Following these initial beatings, both groups were moved to
4 different police stations and then, in some cases, to the Skopje Court II
5 and to the Skopje City Hospital. The Prosecution alleges that the
6 detention and beatings of these arrested men were organised, systematic
7 and pervasive. Most of the detainees were beaten repeatedly and
8 successive locations. For example - and this is always according to the
9 indictment - between the 12th and the 15th of August, 2001, the
10 Prosecution alleges that at least seven men were beaten at five different
11 locations. At least 25 men were beaten at four different locations. At
12 least 44 men were beaten at three different locations. And at least 12
13 men were beaten at two locations and at least two men were beaten at one
15 This is the background information on the indictment. The
16 president of this Tribunal, Professor Theodor Meron, by order dated the
17 16th of March, 2001, assigned this case to Trial Chamber 2, of which I am
18 the Presiding Judge. Consequently, the day after, on the 17th of March,
19 as Presiding Judge of Trial Chamber 2, I designated myself to act as
20 Pre-Trial judge for the purpose of today's initial appearance.
21 I am now going to proceed to a strictly procedural part of this
22 initial appearance which I am tasked to do pursuant to Rule 62 of the
23 Rules of Procedure and Evidence of this Tribunal. And then, having done
24 this, I will proceed to ask you whether you would like to enter a plea
25 today or whether you wish to postpone your decision to later.
1 Mr. Tarculovski, could you please stand up.
2 [The accused stands]
3 JUDGE AGIUS: I am tasked, I have the responsibility to raise with
4 you, first and foremost, issues relating to legal representation. I know
5 that this was briefly touched upon in the earlier stages of today's
6 initial appearance and I also heard you state that you already have in
7 mind a particular lawyer that you would like to have as your counsel for
8 the proceedings that will follow. And I take it that you have already
9 made representations to that effect with the Registrar of this Tribunal.
10 Is that correct?
11 THE ACCUSED: [Interpretation] Yes, it is correct.
12 JUDGE AGIUS: I wish to inform you, Mr. Tarculovski, that according
13 to our Rules of Procedure and Evidence, particularly to rule 45(a),
14 whenever the interests of justice so requires, so demand, counsel shall be
15 assigned to suspects or accused who lack the means to remunerate such
16 counsel. Such assignments shall be treated in accordance with the
17 procedure established in a directive set out by the Registrar and approved
18 by the permanent Judges. In addition, Rule 45(f) provides that a suspect
19 or an accused electing to conduct his or her own defence shall so notify
20 the Registrar in writing at the first opportunity.
21 So let me briefly explain what the situation -- what the position
22 is: You have a right to represent yourself. You have a right to defend
23 yourself. And no one can question that right or deny you that right. So
24 if, apart from today, you decide to defend yourself, that right will be
1 You also have a right to be assisted by counsel of your own
2 choosing. But this right is not an absolute one. It is qualified. It is
3 a relative right. It is qualified by the Rules of this Tribunal which
4 establish certain criteria which need to be followed and satisfied before
5 counsel of your own choice is designated and approved by the Registrar of
6 this Tribunal. It's not something that the Trial Chamber gets involved
7 in. It's something which falls within the discretion of the Registrar.
8 There are certain requirements that the lawyer that you indicate must
9 fulfil. If those requirements are not fulfilled, then the Registrar can
10 deny you the right to be represented by that particular counsel. But this
11 is something that you will, of course, I'm sure, and your designated
12 lawyer will deal with the Registrar directly.
13 And who will pay for the counsel that is appointed for you,
14 ultimately depends on your means. You have - we have a system of Legal
15 Aid which is operative in this Tribunal, but a system of Legal Aid depends
16 on your means, basically. And again, it will be the Registrar who will
17 make the necessary assessment before a decision is taken.
18 Did you understand what I told you?
19 THE ACCUSED: [Interpretation] Right.
20 JUDGE AGIUS: And again I repeat, just for the record, that today
21 you are unassisted because you have so chosen, after what I explained to
22 you earlier on.
23 Now, Mr. Tarculovski, I'm going to ask you some questions. Could
24 you give me your full name for the record, please.
25 THE ACCUSED: [Interpretation] Johan Tarculovski.
1 JUDGE AGIUS: Now, I am going to ask you a question. If you prefer
2 not to answer it, you of course are free not to answer it, because it may
3 have a relevance later on, particularly if you have a nickname. Do you
4 have a nickname that you are referred to, by which you are referred to?
5 THE ACCUSED: No.
6 THE INTERPRETER: I didn't hear him.
7 JUDGE AGIUS: He said "no."
8 THE INTERPRETER: Could you please ask him to speak up because he
9 seldom hear what he says. This is an interpreter's comment.
10 JUDGE AGIUS: The interpreters are telling me, because what you are
11 saying is being translated to me in English, and the interpreters are not
12 hearing what you are saying, so if you could raise your voice a little
13 bit, it would help.
14 Could you give me, please, your date of birth.
15 THE ACCUSED: [Interpretation] 17th of November, 1974.
16 JUDGE AGIUS: Yes. And where were you born, your place of birth?
17 THE ACCUSED: [Interpretation] Skopje.
18 JUDGE AGIUS: What is your nationality?
19 THE ACCUSED: [Interpretation] Macedonian.
20 JUDGE AGIUS: And now I suggest we go into private session,
21 because I'm going to ask the witness for his home address and I don't
22 think that is necessary for the general public to know.
23 [Private session]
10 [Open session]
11 JUDGE AGIUS: We are in open session now. Are the members of your
12 family, your family, informed of your transfer here to The Hague and your
13 state of detention here in the -- in Scheveningen, the UN's detention
15 THE ACCUSED: [Interpretation] Yes.
16 JUDGE AGIUS: Would you like me to inform any member of your family
17 that might not be aware of your situation?
18 THE ACCUSED: [Interpretation] No.
19 JUDGE AGIUS: Is your embassy here in The Hague informed of your
20 transfer and has it been in contact with you?
21 THE ACCUSED: [Interpretation] We called -- I called them.
22 JUDGE AGIUS: Would you like me to inform or contact the members
23 of your embassy here on your behalf?
24 THE ACCUSED: [Interpretation] No.
25 JUDGE AGIUS: Now, please do sit down, Mr. Tarculovski.
1 [The accused sits down]
2 JUDGE AGIUS: As I tried to explain earlier on, you enjoy a number
3 of rights which trigger on from the very moment that you came under the
4 custody of this Tribunal. These rights are enshrined in our Statute and
5 they are also reflected in several places in our Rules of Procedure and
6 Evidence. I am going to ask Madam Registrar to read out to you Articles
7 20 and 21 of our Statute, because they embody the totality of the rights
8 that are spelled out in the Statute itself and which will regulate and
9 govern the proceedings from now onwards. I want to make sure that you are
10 fully aware of these rights and that is the reason why I am asking Madam
11 Registrar to read them out to you.
12 Madam Registrar, could you be kind enough to read out, slowly,
13 Articles 20 and 21 of our Statute, please.
14 THE REGISTRAR: "Article 20: Commencement and conduct of trial
16 "1. The Trial Chamber shall ensure that a trial is fair and
17 expeditious and that proceedings are conducted in accordance with the
18 Rules and Procedure of Evidence with full respect for the rights of the
19 accused and due regard for the protection of victims and witnesses.
20 "2. A person against whom an indictment has been confirmed shall,
21 pursuant to an order or an arrest warrant of the International Tribunal,
22 be taken into custody, immediately informed of the charges against him,
23 and transferred to the International Tribunal.
24 "3. The Trial Chamber shall read the indictment, satisfy itself
25 that the rights of the accused are respected, confirm that the accused
1 understands the indictment, and instruct the accused to enter a plea. The
2 Trial Chamber shall then set the date for trial.
3 "4. The hearing shall be public unless the Trial Chamber decides
4 to close the proceedings in accordance with its Rules of Procedure and
6 "Article 21: Rights of the accused.
7 "1. All persons shall be equal before the International Tribunal.
8 "2. In the determination of charges against him, the accused
9 shall be entitled to a fair and public hearing, subject to Article 22 of
10 the Statute.
11 "3. The accused shall be presumed innocent until proved guilty,
12 according to the provisions of the present Statute.
13 "4. In the determination of any charge against the accused
14 pursuant to the present Statute, the accused shall be entitled to the
15 following minimum guarantees in full equality:
16 "(a) to be informed promptly and in detail in a language which he
17 understands of the nature and cause of the charge against him;
18 "(b) to have adequate time and facilities for the preparation of
19 his Defence and to communicate with counsel of his own choosing;
20 "(c) to be tried without undue delay;
21 "(d) to be tried in his presence and to defend himself in person
22 or through legal assistance of his own choosing, to be informed if he does
23 not have legal assistance of this right, and to have legal assistance
24 assigned to him in any case where the interests of justice so require and
25 without payment by him in any such case if he does not have sufficient
1 means to pay for it;
2 "(e) to exam or have examined the witnesses against him and to
3 obtain the attendance and examination of witnesses on his behalf under the
4 same conditions as witnesses against him;
5 "(f) to have the free assistance of an interpreter if he cannot
6 understand or speak the language used in the International Tribunal;
7 "(g) not to be compelled to testify against himself or to confess
9 JUDGE AGIUS: I thank you, Madam Registrar.
10 Now we come to perhaps the basis -- basic part of today's
11 proceedings. First of all, Mr. Tarculovski, have you received a -- you've
12 heard Madam Registrar read out Articles and 20 and 21 spelling out the
13 rights to which you are entitled.
14 Did you understand, do you understand the importance of these
16 THE ACCUSED: [Interpretation] Yes.
17 JUDGE AGIUS: Is there any particular part from these two Articles
18 that you would like me to explain to you? I'm saying this. Usually I
19 don't do this when there is a lawyer present. But I take it, do you have
20 a legal background yourself?
21 THE ACCUSED: [Interpretation] No.
22 JUDGE AGIUS: Is there anything you would like me to explain to
24 THE ACCUSED: [Interpretation] There isn't anything.
25 JUDGE AGIUS: But I want to make sure that you have understood the
1 importance of these rights and the importance that the Statute itself
2 gives to these rights. All right.
3 Were you served with a copy of the indictment?
4 THE ACCUSED: [Interpretation] Yes.
5 JUDGE AGIUS: Was it served on you in your own language?
6 THE ACCUSED: [Interpretation] Yes.
7 JUDGE AGIUS: Did you read it?
8 THE ACCUSED: [Interpretation] Yes.
9 JUDGE AGIUS: Did you understand its contents and what it charges
10 you with, which crimes it charges you with?
11 THE ACCUSED: [Interpretation] Yes.
12 JUDGE AGIUS: Do you want me to explain anything from that
13 indictment to you?
14 THE ACCUSED: [Interpretation] No.
15 JUDGE AGIUS: All right. Now, Mr. Tarculovski, our Rules give you
16 the right to have this indictment to be read out in full in public. You
17 can also waive that right. And many a time this right is waived, but it
18 all depends on you. If you want us to read out the indictment in full, we
19 will do so. If you waive that right, then the brief summary that I gave
20 earlier on will suffice. You have a choice.
21 THE ACCUSED: [Interpretation] It is sufficient.
22 JUDGE AGIUS: In other words, you waive the right to have the
23 indictment read out in full? All right.
24 The next step is the most solemn part of this - most important
25 part of this initial indictment. I think I already have an indication of
1 your wish. I will proceed with asking you to enter a plea to each of the
2 three counts that are brought against you in the indictment and which I
3 referred to earlier. There are three possibilities: You can opt to enter
4 a plea today. Yes.
5 MR. SCOTT: Pardon me, Your Honour. Excuse me. I wasn't meaning
6 to interrupt but I didn't know how quickly we might get to talking to him
7 about entering a plea. Just for clarification, point of clarification so
8 there is no confusion: In connection with count 3, the cruel treatment
9 charge, it's explained in paragraph 42 of the indictment, Your Honour,
10 that as to that he is only -- Mr. Tarculovski himself is only charged with
11 the acts which are specified in paragraphs 31 and 32. That is stated in
12 the indictment and Mr. Tarculovski has indicated he has read the
13 indictment in his own language and in full. Nonetheless, I just wanted to
14 be clear, especially for purposes of taking a plea, that he understand
15 that as to the cruel treatment count, count 3, he is specifically charged
16 with those allegations stated in paragraphs 31 and 32.
17 JUDGE AGIUS: Yes. And that is Adem Ametovski's house and Zija
18 Ademi's house. Yes. Are you - there are these three -- thank you.
19 There are three possibilities: Possibility number 1 is that you
20 enter a plea today. Possibility number 2 is that you don't, you choose
21 not to enter a plea today and you reserve your right to enter a plea
22 later. Possibility number 3 is to remain completely silent today and
24 If you choose not to enter a plea today, our Rules specify that
25 there is a time limit of 30 days, within which you can enter a plea. If
1 you don't enter a plea within those 30 days, then the Trial Chamber or the
2 Pre-Trial Judge will enter a plea on your behalf which will be a plea of
3 not guilty. If you remain silent now or later, again the Pre-Trial Judge
4 will enter a plea on your behalf and that will be a plea of not guilty.
5 Have you thought about what you would like to do today, whether you are
6 prepared to enter a plea today or whether you would like to postpone your
8 THE ACCUSED: [Interpretation] I would like to postpone my decision
9 for within 30 days.
10 JUDGE AGIUS: All right. And for the record, Registrar, please
11 note that the accused has stated that he will enter a plea within the
12 30-day period that is allowed under Rule 62(a) of the Rules of Procedure
13 and Evidence.
14 So the position is that within these 30 days or towards the end of
15 the 30 days, there will be a continuation of today's initial appearance
16 and you will then enter a plea, which could be one of guilty or one of not
17 guilty, or you can opt to remain silent, but there will be a continuation
18 of today's initial appearance towards the end of the 30-day period. And
19 of course you will be informed. And if by that time you have a lawyer
20 assigned to you, he will also be informed.
21 So there are some -- you may sit down, Mr. Tarculovski
22 JUDGE AGIUS: There are some points that I need to point out to
23 you. We have a special rule, Rule 63, which provides that any questioning
24 of you by the Prosecution, including after the initial appearance, shall
25 not proceed without the presence of counsel unless the accused has
1 voluntarily and expressly agreed to proceed without counsel present.
2 If the accused subsequently expresses a desire to have counsel,
3 questioning shall therefore cease and shall only resume when the accused's
4 counsel is present. Furthermore, under the same rule, Rule paragraph (b),
5 the questioning, including any waiver of the right to counsel, shall be
6 audio recorded or video recorded in accordance with our procedure,
7 established procedure. In addition, the prosecuting officer or the
8 investigator shall, at the beginning of the questioning, give you a
9 caution in accordance with Rule 42, namely that you have -- they will
10 caution you that you have a right to remain silent and that any statement
11 or anything that you may say will be recorded and may be used in evidence.
12 Now, very soon after this initial appearance, I will -- first of
13 all, did you understand the importance of this provision from our Rules
14 that I have just mentioned to you?
15 THE ACCUSED: [Interpretation] Yes.
16 JUDGE AGIUS: In addition, in terms of Rule 65 bis (a), I will
17 appoint a Pre-Trial Judge very soon after today's initial appearance and I
18 will task him or her with presiding over the continued initial appearance
19 and also to act as Pre-Trial Judge until we come to the trial stage.
20 The Pre-Trial Judge will convene Status Conferences within periods
21 of 120 days. The first one will be from the end of the initial appearance
22 and subsequently within 120 days from each previous Status Conference.
23 I'm sure that the Pre-Trial Judge that I will appoint will explain to you
24 the next time you appear before this Tribunal what this is all about, but
25 for the record, I can explain to you very briefly that the purpose of a
1 Status Conference is two-fold: First of all, it gives an opportunity to
2 the parties, together with the Pre-Trial Judge, to organise whatever needs
3 to be organised for an expeditious preparation for trial. Secondly, it
4 also gives the opportunity to the Pre-Trial judge to see you in person and
5 ensure that you are being treated well and to also hear what you have to
6 say, should you have any complaints or any particular requests. You will,
7 of course, be informed in due course of the dates of these Status
9 I will also, on the assumption that you will enter a plea later on
10 within the 30 days, I will instruct the Registrar to follow the
11 proceedings to see if it is the case of fixing an early date for trial, as
12 early as possible. That's unless you enter a guilty plea, in which case
13 there will be special proceedings.
14 For the time being, Mr. Tarculovski, pursuant to an order which I
15 signed on the 17th of March, you are to remain in custody, in the
16 Detention Unit in Scheveningen, but our Rules, particularly in Rule 65,
17 envisage the possibility that -- or right which you have to file an
18 application for provisional release. Of course, if you have a Defence
19 counsel assisting you, he will be able to advise you, or she would be able
20 to advise you on this.
21 However, I want to make it clear that the fact that you do not yet
22 have counsel assigned to you should not be an obstacle should you desire
23 to exercise your right under Rule 65, that is, a right to ask for
24 provisional release. I also want to make it clear that having a right to
25 ask for provisional release does not mean that automatically once that
1 right is exercised the Trial Chamber has to accede to that request. We
2 are still in the very early stages of these proceedings and it is very
3 rare that such requests are acceded to at this early stage. However, you
4 have a right to file such an application.
5 If the assignment of counsel takes a long time and you need -- you
6 would like to file such an application, I am sure that you will receive
7 all the assistance that you require, either from the office of the
8 Registrar itself or from the commandant of the Detention Unit and you can
9 formulate such an application yourself in writing in whichever way you
10 deem fit and proper.
11 Now, Mr. Scott, I need barely remind you, of course, of your
12 responsibilities under Rule 66(a)(i) of the Rules, namely that you have 30
13 days after the initial appearance of the accused to make available to
14 Defence counsel in the language which the accused understands all the
15 supporting material which accompanied the indictment when confirmation was
16 sought. Of course there are caveats because we don't yet have Defence
17 counsel. There is no statement from the accused that he would like to
18 receive them himself. And also the initial appearance hasn't come to an
19 end and will not come to an end today. But I am sure I need not explain
20 these to you. Please, Mr. Scott, if you have anything to state in this
22 MR. SCOTT: Thank you, Your Honour. We appreciate that. We are,
23 of course, very mindful of our obligations. We don't anticipate any
24 problems. We do, of course, anticipate, as in every case, to file a
25 motion for general protective measures prior to any actual disclosure and
1 I think that is basically, as you know, standard practice. The only
2 possible delay that could involve as to some materials would be,
3 unfortunately, of course, the translation issue, but that is underway, but
4 we would anticipate meeting our obligations.
5 JUDGE AGIUS: Okay. I thank you.
6 Then, Mr. Tarculovski, I will try to explain this to you but,
7 again, if you have assistance of counsel, it will be easier.
8 We have a special Rule dealing with preliminary pleas, and that is
9 Rule 72(a). This Rule establishes or fixes a time limit of 30 days for
10 you to file any preliminary motions once you have received all the
11 supporting material in accordance with the Article that I pointed out to
12 Mr. Scott. So I hope that you will have counsel designated pretty soon
13 and that you will then be able to discuss with him if it's the case of
14 filing any preliminary motions. If you have problems with this later on,
15 especially if there are problems in the designation of counsel of your own
16 choice, and you have problems, you can seek the assistance from the
17 Registrar and also you can seek the assistance of the Pre-Trial Judge that
18 will be looking after the Pre-Trial stage.
19 Did I make myself clear?
20 THE ACCUSED: [Interpretation] Yes.
21 JUDGE AGIUS: Okay, thank you. Mr. Scott, is there anything that
22 the Prosecution would like to raise? Of course the counts -- because I
23 appreciate your pointing out count 3, and there are other things that come
24 out when we come to the counts proper, but I would have come to those, of
25 course, if I had a message if he was going to plead guilty, but that will
1 be dealt with later on by my colleague, it will be Judge Eser who will be
2 appointed as Pre-Trial Judge, but also to continue with the initial
3 appearance. In other words, I will task him with that and he will deal
4 with that.
5 In the meantime, is there any other matter that you would like to
7 MR. SCOTT: No, Your Honour. Thank you very much. We just wanted
8 that one point to be clear. But we anticipated also that the actual entry
9 of a plea would be postponed. Thank you.
10 JUDGE AGIUS: Okay, I thank you. Mr. Tarculovski, is there
11 anything that -- any matter that you would like to raise at this stage?
12 THE ACCUSED: [Interpretation] No.
13 JUDGE AGIUS: All right. Before we adjourn, there is one thing
14 that I want to make sure of. You arrived here in The Hague -- did you
15 surrender voluntarily?
16 THE ACCUSED: [Interpretation] I was detained.
17 JUDGE AGIUS: You were detained. Since the moment of your
18 detention, since the moment of your detention, have you been treated well?
19 THE ACCUSED: [Interpretation] Yes.
20 JUDGE AGIUS: And upon your arrival here in The Hague, you have
21 been taken into custody in a state of detention at the Detention Unit.
22 Have you been treated well there?
23 THE ACCUSED: [Interpretation] Yes.
24 JUDGE AGIUS: Do you have any special requests or complaints in
25 regard to your state of detention, which could also touch on health
1 matters if you have any? If you do, we will go into private session and
2 we will discuss those in private session.
3 THE ACCUSED: [Interpretation] No, I don't have.
4 JUDGE AGIUS: All right. So you may sit down and this brings to
5 an end the first stage of the initial appearance, which will be continued
6 towards the end of the 30-day period and which will be presided over by
7 another judge. I thank you all and we stand adjourned.
8 --- Whereupon the Initial Appearance adjorned
9 at 9.05 a.m.