Tribunal Criminal Tribunal for the Former Yugoslavia

Page 145

1 Tuesday, 11 April 2006

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 11.32 a.m.

6 JUDGE ESER: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good morning, Your Honour. This is Case Number

8 IT-04-82-PT, the Prosecutor versus Ljube Boskoski and Johan Tarculovski.

9 JUDGE ESER: Good morning, ladies and gentlemen. I would like to

10 welcome you to this Status Conference. Can I ask the accused whether you

11 understand the proceeding in your own language.

12 Mr. Boskoski, do you understand?

13 THE ACCUSED BOSKOSKI: [Interpretation] Yes, Your Honour.

14 JUDGE ESER: And Mr. Tarculovski?

15 THE ACCUSED TARCULOVSKI: [Interpretation] Yes.

16 JUDGE ESER: Thank you very much.

17 May I ask for the appearances for the Prosecution.

18 MR. SAXON: Dan Saxon for the Prosecution, with my colleague

19 Mr. Anees Ahmed, and our case manager Ms. Salla Moilanen.

20 JUDGE ESER: Thank you very much.

21 And appearances for the Defence, for Mr. Boskoski.

22 MS. RESIDOVIC: [Interpretation] Good morning, Your Honour.

23 Pursuant to the authority of lead counsel Dragan Godzo, I am appearing

24 here on behalf of Mr. Boskoski. My name is Edina Residovic, co-counsel,

25 thank you.

Page 146

1 JUDGE ESER: You are accompanied by whom?

2 MS. RESIDOVIC: [Interpretation] Jesenka Residovic, case manager.

3 JUDGE ESER: And the counsel for Mr. Tarculovski?

4 MR. APOSTOLSKI: [Interpretation] Good day, Your Honour. For the

5 accused Johan Tarculovski, his chief attorney, Defence counsel Antonio

6 Apostolski.

7 JUDGE ESER: Thank you very much.

8 I think you have been informed about special arrangements with

9 regard to use of the microphones, so I don't have to repeat it. I hope

10 so. Before we start, perhaps I may also, for the public, a little bit

11 explain what the purpose of this meeting is. Pursuant to Rule 65 bis of

12 the Rules of Procedure and Evidence of our Tribunal, a Trial Chamber shall

13 convene a Status Conference within 120 days of the initial appearance of

14 the accused, and thereafter within 120 days of the last Status Conference,

15 in order to organise exchanges between the parties so as to ensure an

16 expeditious preparation for trial, and to review the status of the

17 accused's case and to allow the accused the opportunity to raise issues in

18 relation thereto, including the mental and physical condition and matters

19 relating to detention.

20 The last Status Conference took place on December 12th of the last

21 year, and as is usually the case, in preparation of this Status Conference

22 there was held a Rule 65 ter meeting earlier this morning. It was

23 performed by Mr. Herman von Hebel, and he has briefed me about the

24 discussion at the conference, so I would not repeat everything that has

25 been discussed at the 65 ter meeting but only those issues which seem to

Page 147

1 be relevant to be discussed here in this public appearance.

2 Now, the first point which I would like to address is the

3 indictment and the issue of the pre-trial briefs. I would like to recall

4 that on the 5th of December, 2005, the Prosecution filed a new indictment

5 containing amendments ordered by the Trial Chamber and amendments

6 submitted by the Prosecution. On November 1, 2005, the Trial Chamber

7 issued a decision granting most of the changes and amendments, while

8 rejecting two newly proposed amendments. And in course of these

9 amendments, on November 2, 2005, an amended indictment was filed in

10 compliance with the Trial Chamber's decision.

11 And on November 7th of the last year, the Prosecution filed its

12 pre-trial brief. It appeared there that there was still a contradiction

13 between the latest version of the indictment and the pre-trial brief, as

14 to way the command responsibility for the accused Boskoski was formulated.

15 There was no time then to try to resolve that issue, so the issue had been

16 taken up again in a 65 ter meeting on the 23rd of March, 2006, regarding

17 further discrepancies in the amended indictment and the pre-trial brief.

18 Now, as a result of this meeting of April -- of this meeting on

19 April 4 - that means a couple of days ago - a motion for leave to amend

20 the indictment has been brought in by the Prosecution. In the meantime,

21 we received a motion by the counsel of Mr. Tarculovski and also just the

22 other day for the counsel by Mr. Boskoski. Now, what I would like to ask

23 the Prosecution, whether you want to bring in a reply to these responses

24 by the Defence counsels.

25 MR. SAXON: Your Honour, the Prosecution only received the

Page 148

1 response of the accused Boskoski shortly after 9.00 this morning. With

2 leave of the Trial Chamber, in order to provide a coherent and hopefully

3 concise reply, we would ask your leave to file a reply in the next day or

4 two.

5 JUDGE ESER: Yes, okay. This -- you will have time to reply at

6 the end of the week. That would be --

7 MR. SAXON: Absolutely, Your Honour.

8 JUDGE ESER: -- on Friday. And then there will have to be taken a

9 decision by the Trial Chamber -- provided by the Trial Chamber. Thank

10 you.

11 Any further remarks on this point? If this is not the case, we

12 can continue with addressing some outstanding motions. The first motion

13 which I would like to address is the Prosecution's motion for leave to

14 amend its original Rule 65 ter witness list dated November 7, 2005, with

15 Annexes A and B filed on the 31st of March, 2006. The Prosecution is

16 requesting to remove seven witnesses and to add five witnesses. So far no

17 responses have been filed by the Defence, and I would like to ask the

18 Defence whether you are still considering to file a response.

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 149

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 Your Honour, I would like to say that the expert reports of these

10 witnesses were disclosed to us not so long ago, and we have to bear in

11 mind the deadlines that we have, so as long as that is not neglected.

12 Thank you.

13 JUDGE ESER: And you are aware that the deadline had been, I

14 think, the 14th of April. Are you aware of that?

15 MS. RESIDOVIC: [Interpretation] I apologise. Which deadline?

16 JUDGE ESER: The deadline for your response was to be -- supposed

17 to be filed by April 14.

18 MS. RESIDOVIC: [Interpretation] Your Honours, we responded to the

19 motion to amend the indictment. As for the list of witnesses, yes, the

20 14th of April could be the deadline, but if you agree, what we stated

21 orally today can be taken as a written response. If you, however, request

22 otherwise, then, yes, we can comply with your request and provide a

23 written response by the 14th of April concerning the amended list of

24 witnesses.

25 JUDGE ESER: Of course we can accept this as your written

Page 150

1 response, but then I misunderstood you a little bit. I thought that you

2 would sort of bring in a further written statement. But if it is not the

3 case, then we consider your oral statement here as your response which has

4 been filed within the time given to you; that means prior to April 14th.

5 MS. RESIDOVIC: [Interpretation] Yes, Your Honour. We agree for

6 these four out of five proposed witnesses to be put on the witness list.

7 However, as for their expert status, we will provide our response

8 concerning that once we respond to their expert reports in accordance with

9 Rule 94 bis. Thank you.

10 JUDGE ESER: Thank you very much. Now I am clear about that.

11 Thank you.

12 Now, the Trial Chamber will issue its decision in the near future

13 on this motion.

14 The next motion which I would like to address is --

15 MR. SAXON: Your Honour --

16 JUDGE ESER: Oh, I'm sorry, you -- the Prosecution wants to make a

17 submission.

18 (redacted)

19 (redacted)

20 (redacted)

21 [Trial Chamber and registrar confer]

22 JUDGE ESER: Now, I was just made aware of the following problem:

23 Perhaps you should be a little bit cautious as mentioning names here,

24 otherwise we should go into private session. So if you find a way not to

25 mention names, that would be fine.

Page 151

1 MR. SAXON: Thank you, Your Honour. With regard to the witness

2 referred to by my learned colleague a few minutes ago, I would simply make

3 the following observations: It is true that the Prosecution omitted to

4 place this witness on its original witness list filed on 7th of November.

5 Prosecution has been completely honest about that fact. However, having

6 said that, Your Honour, as we know, there is still no date set yet for the

7 commencement of this trial. The statement of this witness has been

8 disclosed to the Defence, both in English and in the language of the

9 accused. And certainly there would be no prejudice suffered by either of

10 the Prosecution [sic] if a -- if this witness was added to the list at

11 that time. On the contrary, since a trial is a search for the truth, in

12 the Prosecution's submission, the addition of this witness would assist

13 the Chamber and the parties in finding the full truth about the charges

14 alleged in the indictment.

15 JUDGE ESER: Thank you very much. At this moment I just would

16 like to say that we will take into consideration both the response of the

17 Defence and the reply by the Prosecution when we have to take our

18 decision.

19 [Trial Chamber and registrar confer]

20 JUDGE ESER: So what I just did was to redact the transcript to

21 remove the names of the witnesses which have been put here, to be on the

22 safe side, so to say.

23 Now, the next issue would be the confidential Prosecution's third

24 motion for admission of written statements in lieu of viva voce testimony

25 pursuant to Rule 92 bis and the attached annexes. The Prosecution has

Page 152

1 requested to admit the written statement of two witnesses pursuant to Rule

2 92 bis of the Rules. This is a third and last motion of three relating to

3 admissions of written statements pursuant to this rule. The motion

4 consists of only two statements. One statement relates to a witness who

5 was only recently suggested to be admitted -- added to the witness list.

6 The Defence have not been provided before with a copy of the statement.

7 The Defence of Boskoski filed a motion on the 7th of April to have until

8 17th of April - 14 days - to respond. And the Defence counsel of Mr.

9 Tarculovski requested extra time until the 24th April to respond.

10 Now, as it was already discussed, I think, in the 65 ter meeting,

11 the Pre-Trial Chamber will first take a decision on the Prosecution's

12 motion for leave to amend its original Rule 65 ter witness list which had

13 been filed on the 31st of March. And then the Pre-Trial Chamber intends

14 to do so in the course of this week. And from the day of issuing this

15 decision, the parties will be provided 14 days to file a response to the

16 third Rule 92 bis motion. That's what I would like you to inform about.

17 Is there any comment from your side? If it is not the case, the

18 next issue would be the Defence Boskoski -- the motion on behalf of the --

19 of Mr. Boskoski for access to confidential material in the Haradinaj case

20 dated 6th of April, 2006. As you have already been informed in the 65 ter

21 meeting, the Trial Chamber will take the decision in due course.

22 Now, the next -- any comment of this? If not the case, I turn to

23 the Defence motion pursuant to Rule 94 bis of expert reports which has

24 been filed on the 6th of April this year. Now, as you may recall from the

25 65 ter meeting, there has been some discussion on the translation of these

Page 153

1 expert reports. And may I ask the Defence why it appears so important,

2 first, to have translated all this material.

3 MS. RESIDOVIC: [Interpretation] Your Honour, we have requested the

4 Trial Chamber to consider our application, bearing in mind the rights of

5 the accused as defined in Article 21 of the Statute. The accused has the

6 right to receive evidence in the language that he speaks and understands,

7 evidence against him in his case. We consider the expert reports to be

8 very significant evidence in the hands of the Prosecution. The

9 Prosecution is using those reports to prove the culpability of our client.

10 That is why our reading of Article 21 of the Statute is such that before

11 any deadlines for responses to those expert reports can start, the accused

12 have to be able to read the reports.

13 I have to say that there is a certain jurisprudence in this

14 Tribunal in that regard, and I have also mentioned my experience from the

15 Hadzihasanovic case at our 65 ter meeting. The Trial Chamber there also

16 allowed the Defence, based on Article 21 of the Statute, and decided that

17 the deadline would start from the date that the expert report is

18 translated into the language of the accused. I think that it's a rather

19 elementary request that an accused should know the evidence in his own

20 language, evidence against him; and my other argument is that there is

21 already jurisprudence of this Tribunal in that regard. That is why I

22 think that you should accept these arguments and adjust our deadline for

23 submitting the response to the expert report. Thank you.

24 JUDGE ESER: Thank you.

25 Is there any response from the OTP side?

Page 154

1 MR. SAXON: Your Honour, the Prosecution yesterday filed a written

2 response, and we have nothing to add to that today.

3 JUDGE ESER: Okay. I have been informed that the translation of

4 these reports which are in issue is expected early May, so I think the

5 time for response will be by mid-June, something like this, and we will

6 take it into our overall scheduling order, which is due to be issued

7 hopefully so at the end -- before the end of this week.

8 Now, the next point which I would like to raise is the disclosure

9 -- are disclosure matters. Since most of it has been dealt with in the

10 65 ter meeting, I would only like to address the exhibits problem. I --

11 as far as I have been informed, out of the fifty -- 556 exhibits, there

12 are still about 30 exhibits not translated yet, not including the exhibits

13 relating to the expert reports. Again, I have been informed that the

14 translation of these exhibits is expected until the end of April. Is this

15 still the case or is there any change with this respect?

16 MR. SAXON: That is still the case, Your Honour. I must say, the

17 Prosecution is dependent on the fine efforts of CLSS in this regard, but

18 we have asked to have these materials no later than the end of this month.

19 JUDGE ESER: Okay. So it's only just to mention this and to make

20 it clear that we are at least trying to have this also finalised as soon

21 as possible.

22 Now, the next issue would be the problem of agreed facts. You may

23 recollect that, according to the scheduling order of 15th of December last

24 year, the parties were required to finalise discussions on first and

25 second agreed facts proposals by May 5th, 2006. A first set of agreed

Page 155

1 facts was sent to the Defence on the 19th of August, 2005, and the second

2 one on the 2nd of November, 2005. By letter of April 10, the Prosecution

3 informed the Chamber that it had only received a response from counsel for

4 Mr. Boskoski in October 2005, and the parties have also regularly

5 indicated that they are in a good position to enter into discussion on

6 agreed facts once disclosure is finalised.

7 Now, as I will do with other issues, this matter will also be

8 dealt with with regard to a new deadline within the overall scheduling

9 order to be issued in due course.

10 The next -- is there any comment from any side? No.

11 So I will -- now I would like to come to the length of the

12 proposed trial. This, of course, is a very important problem and concern,

13 particularly with regard to the completion strategy of our Tribunal.

14 By reviewing the current proposed witness list of the Prosecution,

15 we have about 123 witnesses. If we calculate the time which is indicated

16 for the examination-in-chief of these witnesses, we come to a total viva

17 voce evidence of approximately 230 hours, not including cross-examination.

18 Since a normal sitting day is for three hours and 45 minutes, this equals

19 a total, approximately, of 61 sitting days for only the presentation of

20 the Prosecution witnesses without the cross-examination. And now if I

21 calculate that the cross-examination by the two accused, by the Defence,

22 may take approximately the same amount of time, this would run up that the

23 Prosecution case will last at least 120 sitting days, and that makes

24 approximately 24 weeks or roughly six months. And this calculation

25 there's still not included Rule 92 bis witnesses, which also may need some

Page 156

1 sort of cross-examination, at least perhaps some of them.

2 Now, taking everything together we come to a total of 164 days for

3 the Prosecution case, which would mean between seven to eight months.

4 Now, taking into account that the indictment relates to a time period of

5 only a few days, seven to eight months means quite a lot if not too much.

6 And if we also recollect that the Prosecution had foresaw or indicated

7 that the Prosecution case would roughly take up about four months in

8 total, now we would have a doubling of the original four months.

9 Now, may I ask the Prosecution whether we have some -- can give

10 some explanation for this quite tremendous expansion in time, and perhaps

11 I may connect my question with asking you whether you see possibilities to

12 cut down, at least to a certain degree, what is now the calculation; or do

13 you think that our calculation is not realistic?

14 MR. SAXON: The Prosecution does not question the calculations of

15 the Chamber, Your Honour. The Prosecution has more recently had more time

16 to reflect upon the length of its case, and that is why we have provided

17 the numbers that we have provided in its more recent submissions. In

18 response to your question as to whether it would be possible to cut down

19 the length of the Prosecution's case, I believe there is some room, Your

20 Honour, and the Prosecution will abide by any order relevant to that issue

21 issued by the Chamber.

22 JUDGE ESER: Of course the final -- as you all are aware, the

23 final decision has to be taken in the pre-trial conference, but it is also

24 possible to direct it before the pre-trial conference. And I would be --

25 appreciate it very much if you would -- for the next Status Conference

Page 157

1 that you might indicate what possibilities you see to cut -- cut it down,

2 or what other -- indicate whether the time with which you have foreseen

3 for the examination-in-chief may be cut down to a certain degree. So if

4 -- I think there are two possibilities: Either cutting down the witness

5 list or perhaps trying to cut down the time which will be needed for the

6 examination-in-chief, and then come up with a new calculation.

7 MR. SAXON: The Prosecution will certainly do that by the time we

8 meet again for our next Status Conference, Your Honour.

9 JUDGE ESER: Thank you. These are the points I wanted to raise.

10 Are there any other issues you would like to address at this

11 moment? From the Defence I see nothing. From the OTP, no -- then I would

12 like to ask, and it is my duty, my official duty, to ask the accused

13 whether they would wish to raise any matter relating to their state of

14 health or the condition of detention.

15 Now, Mr. Boskoski, would you like to address this point? Is there

16 anything you would like to mention with regard to the state of your health

17 or your condition of detention at this point now?

18 THE ACCUSED BOSKOSKI: [Interpretation] Your Honour, with respect

19 to the detention condition, everything is fine. The attitude of the

20 personnel, of the medical personnel, we have to mention that we are

21 pleased and I do not have any objections with respect to the

22 accommodation, detention. However, I have had some health problems due to

23 the overall situation that we have faced over the past period and -- but

24 with a very good medical intervention, my medical condition at this moment

25 is good and I'm feeling good. I do not have anything else to add, thank

Page 158

1 you, Your Honour.

2 JUDGE ESER: Thank you very much, Mr. Boskoski.

3 Mr. Tarculovski.

4 THE ACCUSED TARCULOVSKI: [Interpretation] Your --

5 JUDGE ESER: Please switch on the microphone.

6 THE ACCUSED TARCULOVSKI: [Interpretation] I do not have anything

7 to complain. The situation in the prison and detention is good. My

8 health condition is well. Thank you.

9 JUDGE ESER: Now, we would like to inform you that you may raise

10 matters relating to your condition to the commanding officer of the

11 Detention Unit and the Registrar pursuant to the Rules governing the

12 detention of persons awaiting trial or appeal. I also would like to

13 assure you, as far as it is in my disposal, I would also be prepared to

14 take up matters if you would like to address me too.

15 So if there is no other issue at this moment, the court now will

16 be adjourned. Thank you very much, and may you have a good day.

17 --- Whereupon the Status Conference

18 adjourned at 12.08 p.m.