Tribunal Criminal Tribunal for the Former Yugoslavia

Page 159

1 Wednesday, 16 August 2006

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.03 a.m.

6 JUDGE PROST: [Microphone not activated].

7 Better? Madam Registrar, would you call the case, please.

8 THE REGISTRAR: Good morning, Your Honour. This is case number

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

10 JUDGE PROST: Thank you very much. Good morning to all.

11 Could I first of all ensure that the accused are hearing these

12 proceedings in a language that they understand.

13 Mr. Boskoski, can you confirm that you are hearing and in a

14 language you understand?

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

16 JUDGE PROST: Thank you very much, sir. Good morning.

17 And Mr. Tarculovski, can you confirm that you are able to hear

18 these proceedings --

19 THE ACCUSED TARCULOVSKI: [Interpretation] Yes --

20 JUDGE PROST: -- in a language you understand?

21 THE ACCUSED TARCULOVSKI: [Interpretation] Yes.

22 JUDGE PROST: Thank you, sir.

23 May I have the appearances, please, for the Prosecution.

24 MR. SAXON: Dan Saxon for the Prosecution, together with my

25 colleagues, Mr. Anees Ahmed and Salla Moilanen.

Page 160

1 JUDGE PROST: Good morning to you and to your team, Mr. Saxon.

2 Counsel.

3 MS. RESIDOVIC: [Interpretation] Good morning, Judge. Edina

4 Residovic, counsel, member of the Defence team, Dragan Godzo, counsel

5 consultant, Mirna Milanovic-Lalic, Jesenka Residovic, the legal assistants

6 and case managers representing Ljube Boskoski. Thank you very much.

7 JUDGE PROST: Good morning to you and to your team.

8 MR. APOSTOLSKI: [Interpretation] Good morning, Your Honour. For

9 Johan Tarculovski, Antonio Apostolski, his chief attorney.

10 JUDGE PROST: Thank you.

11 Well, as you're all aware, we're here for a Status Conference in

12 order to review and exchange on some of the relevant issues, to look at

13 the status of the case, and of course there will be an opportunity for the

14 accused to raise any issues in particular with regard to their physical or

15 mental condition. The last Status Conference was on the 11th of April,

16 and we are a few days outside the 120 days, but that has been agreed to by

17 counsel.

18 I understand there was a Rule 65 ter meeting yesterday, and I have

19 received a brief on that and so I am aware of some of the discussions and

20 issues from yesterday.

21 What I would propose that we do is to go through some items

22 that -- that we've identified, together with the assistance of counsel,

23 and at the end I will address with you in discussion the major issue

24 perhaps for today, which is the scheduling question. But in the interim

25 we can go through some other additional issues that are -- may be relevant

Page 161

1 for some discussions, and of course you'll have an opportunity to raise

2 anything that you might wish to.

3 Yes, counsel.

4 MS. RESIDOVIC: [Interpretation] Yes, Madam President, I thank you.

5 Yesterday we addressed another issue which is extremely important

6 to the case. I don't know if we are entitled to raise this question. The

7 question pertains to the issue of language to be used in this case. Are

8 we able to put the question to you at the beginning of this Status

9 Conference, or would you rather that we address it at the end of this

10 Status Conference? Thank you.

11 JUDGE PROST: No. If there is an issue on language, I'm happy for

12 you to raise it at this stage so that we can discuss it.

13 MS. RESIDOVIC: [Interpretation] Your Honour, I feel that the

14 accused has a right to this. I think it also has to do with a fair trial.

15 These are issues on -- whereby the Trial Chamber must and should protect

16 the rights of the accused. The Registry told me yesterday that a memo has

17 already been sent to the Trial Chamber when such a question is being

18 raised. If you like, I can briefly describe what happened.

19 JUDGE PROST: Well, first can you identify for me the precise

20 issue that you are dealing with. Is this the question of the language in

21 which you are able to communicate before the Court? Is that the issue?

22 MS. RESIDOVIC: [Interpretation] Yes, indeed, that's what it's

23 about.

24 JUDGE PROST: Well, what I would suggest on this particular

25 issue - and I'm not precluding you from making further representations on

Page 162

1 this - but I understand that this is at this stage a matter for discussion

2 between yourself and the Registry, and that those discussions are ongoing.

3 And as you are aware that the rules in the area are fairly clear and

4 straightforward, and so I would prefer if you were to continue those

5 discussions with the Registry and ultimately, if not satisfied, there are

6 certain remedies that you can pursue or certain action that you can take.

7 But for the moment I understand the matter is under -- is the subject of

8 an ongoing discussion with the Registry and would encourage that that

9 discussion continue. But is that acceptable to you at this stage, or

10 would you like to make further submissions, in which case I will also hear

11 from the Prosecution.

12 MS. RESIDOVIC: [Interpretation] Yes, of course, Your Honour.

13 Thank you very much. We shall bear in mind and consider the proposal you

14 have just made.

15 I would just like to say that there is a distinction between the

16 rights and obligations of the Defence counsel and the rights and

17 obligation of the accused in Rule 21 where he is entitled to have an

18 interpreter free of charge, if he or she does not understand the people

19 present in the courtroom, the Legal Officers and attorneys. When I say --

20 my client speaks Croatian and Macedonian. In other words, if I speak

21 B/C/S, I'm just respecting his rights, not the rights of the counsel of

22 the Defence.

23 This is the first time that an accused is prevented from hearing

24 his counsel in his own native language. He is listening to his counsel in

25 a different language, and I have been working for those -- for this

Page 163

1 Tribunal since 1996 already, and every time I have expressed myself in the

2 language of my client in the courtroom. But I shall of course follow your

3 instructions. But if nobody heeds these rights, in that case we shall

4 file an application or submit it to you in any other way.

5 Thank you very much, Your Honour.

6 JUDGE PROST: Thank you for those submissions, and as I've

7 indicated, I'm certainly not precluding further action on your part with

8 respect to the issue, but I would encourage further discussions, as

9 indicated, with the Registry and then we can perhaps at a later stage, if

10 necessary, return to the issue. Thank you very much.

11 If there's nothing further on that particular question at this

12 time, perhaps we can take a look at some of the issues pertaining to the

13 case.

14 First of all, on the question of disclosure, I understand this was

15 the subject of discussions yesterday. And it is my understanding that

16 disclosure is either completed in many respects or nearing completion.

17 Mr. Saxon, perhaps you'd like to make some comments; it appears

18 you would.

19 MR. SAXON: Yes, Your Honour, very briefly.

20 Just to add to the discussion that occurred yesterday. Regarding

21 the Prosecution's compliant -- compliance with its obligations under

22 Rule 68 to provide exculpatory material to the accused, you'll recall that

23 Rule 68 provides that where exculpatory material is identified within

24 material originally provided to the Prosecution under the restrictions of

25 Rule 70 of the Rules of Procedure and Evidence, the Prosecution has an

Page 164

1 obligation to seek the permission of the Rule 70 provider of that

2 material, permission to lift the restrictions of Rule 70 in order to

3 disclose the material to the Defence under Rule 68. And the Prosecution

4 has endeavoured to comply with that portion of Rule 68 in this case, and

5 in fact today we will be disclosing some material originally provided to

6 us under Rule 70 to the accused. However, I simply want to bring to the

7 parties' attention and to the Chamber's attention, there is one more item

8 that the Prosecution has identified that the Prosecution believes falls

9 within the disclosure obligations of Rule 68, but which was originally

10 provided to the Prosecution under Rule 70. The Prosecution has contacted

11 the provider of the information and requested permission to disclose this

12 material to the accused in this case. However, we have not yet received a

13 response. I simply wanted to put that matter before the parties and the

14 Chamber.

15 With respect to disclosure of exhibits, the Chamber actually

16 brought to the Prosecution's attention yesterday two items that had been

17 provided to the Chamber and the parties as part of the Prosecution's

18 recent revised motions for admission of materials pursuant to Rule 92 bis.

19 And there were some attachments to some of those statements that were

20 filed with those motions. And the Chamber alerted the Prosecution

21 yesterday to the fact that two items were not within the confines of the

22 Prosecution's current revised exhibit list. And that is -- one of them

23 would be a document with the ERN number N0005202-N0005203. This was a

24 document attached to the witness statement of Tanja Groseva. And the

25 Prosecution will add that document or seek permission to add that document

Page 165

1 to its exhibit list. It was an oversight that it was not previously

2 placed on the list. It has, by the way, previously been disclosed to the

3 parties last November in batch 5 of its disclosure.

4 In addition, there was a paragraph attached to the statement of

5 Prosecution witness (redacted), and that has ERN number (redacted). And

6 the Prosecution also realises that it inadvertently neglected to place

7 that photograph on its exhibit list and will also endeavour to do that in

8 the future.

9 Other than that, the Prosecution has nothing to add to what it

10 said yesterday, Your Honour.

11 JUDGE PROST: Thank you very much for that, Mr. Saxon, and I can

12 see that it's not necessary but I will in any event remind of the

13 continuing obligation under Rule 68, but it's apparent that you're quite

14 conscious of that requirement for the disclosure of exculpatory material.

15 MR. SAXON: We are very conscious, Your Honour, and we are

16 sincerely doing the best we can.

17 JUDGE PROST: Thank you very much. And thank you for those

18 clarifications regarding the exhibit items.

19 I also understand that there is an exhibit item to be withdrawn,

20 Exhibit 128. Is that correct, Mr. Saxon?

21 MR. SAXON: That is correct, Your Honour.

22 JUDGE PROST: Okay. Thank you very much for that.

23 Do counsel have any issues to raise regarding the question of

24 disclosure? I understand from the discussions yesterday that things are

25 proceeding as indicated and that disclosure is almost complete. Any

Page 166

1 comments or issues?

2 Ms. Residovic.

3 MS. RESIDOVIC: [Interpretation] Thank you, Your Honour.

4 As we mentioned yesterday in our 65 ter conference, the Defence

5 counsel of Mr. Boskoski ran into problems because from the 1st of May

6 until the beginning of the month of August he was without any professional

7 help and was defending himself. And the -- and yesterday the Defence

8 counsel were able to be provided with all the documents which the

9 Prosecution has provided pursuant to Rules 66 and 68. We're going to be

10 receiving more documents today, if I understood rightly, from what our

11 colleague told us.

12 The other thing I wanted to point out is the following. The

13 application we filed -- the request we made to the Prosecution, we wanted

14 to know if the investigation on the ground was completed. This started in

15 2001 and right up till now. This is extremely important in a case like

16 this because it is very important. All documents and all material should

17 be handed over to the accused. This is why we are asking for this. We

18 would like to know how many documents and material would be provided.

19 As far as 92 bis is concerned, we have nothing to add to what has

20 been said already by our colleague. We have received a letter from the

21 Prosecution stating that not all statements have been prepared or provided

22 according to the Rules, but we have a question to raise thereafter. Can

23 the Prosecution let us know: Have the witnesses signed the statements in

24 English or have the witnesses signed the statements in their own language?

25 Also, before completing all our preliminary motions, all our comments and

Page 167

1 decisions taken by the Trial Chamber will only be preliminary decisions.

2 These are some of the remarks I made yesterday.

3 Thank you, Your Honour.

4 JUDGE PROST: Thank you very much.

5 Mr. Saxon, do you have some responses on those issues?

6 MR. SAXON: Yes, Your Honour.

7 First of all, a clarification, and if the mistake was mine then I

8 will apologise. I may have misunderstood part of the discussion that

9 occurred yesterday in our Rule 65 ter (D) meeting. What I heard

10 Ms. Residovic mention a moment ago was the Defence's concern whether the

11 investigation "on the ground" was complete. Yesterday what I heard, at

12 least through the interpretation, was whether the Prosecution's research

13 was complete. And quite frankly, I understood that question as referring

14 to the Prosecution's efforts to comply for Rule -- to -- with Rule 68, in

15 other words, searching its internal evidentiary collections that should be

16 disclosed to the Defence. I did not interpret Ms. Residovic's question to

17 refer to whether or not the Prosecution continues to investigate matters

18 relevant to the second amended indictment, to use Ms. Residovic's

19 term, "on the ground" in the state of Macedonia. And let me simply

20 clarify that. The Prosecution feels that it has the right and -- not only

21 the right, the duty to investigate this case to the fullest degree of its

22 ability, both to find inculpatory information and, when it arises, to

23 locate exculpatory information which must then be provided to the Defence.

24 Therefore, the Prosecution's investigations -- investigative activity

25 within the state of Macedonia or, quite frankly, within other states, if

Page 168

1 that's where the investigative trail leads, are ongoing.

2 Secondly, the counsel for Mr. Boskoski with regard to the

3 Prosecution's recent motions under Rule 92 bis, counsel asked whether the

4 witnesses have signed their statements in English or in their own

5 language. To date it is my understanding that all or virtually all of the

6 statements that are subject to the Prosecution's recent motions under

7 Rule 92 bis have been signed by the witnesses in the English language.

8 Now, as part of the certification process under Rule 92 bis, the witness

9 must review his or her statement in their original language, which in this

10 case would either be Albanian or the Macedonian language, in their native

11 language I should have said. And that will be the case, as the

12 Prosecution undergoes this Rule 92 bis certification process.

13 JUDGE PROST: Thank you, Mr. Saxon.

14 Ms. Residovic.

15 MS. RESIDOVIC: [Interpretation] My colleague, Your Honour, has

16 understood me full well and understood what I said yesterday, because

17 yesterday we addressed the issue of the 92 bis statements in a limited

18 manner. We only talked about the documents and research conducted and the

19 obligations of the Prosecution pursuant to Rule 66 and 68.

20 But as I have said, I would like to add something else, something

21 which was not discussed yesterday and it relates to the same issue;

22 namely, we know that the Prosecution started its investigation as of 2001

23 onwards and the investigation continued. My question was a very clear-cut

24 question. Can the Prosecution tell us whether it has completed its

25 investigation, because this is extremely important as far as the right of

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1 the accused is concerned so that the Defence can prepare itself properly.

2 Can we be quite sure that things stand as they are today? And I have now

3 received the answer to my question.

4 Thank you very much.

5 JUDGE PROST: Thank you. Yes, I believe Mr. Saxon was clear as to

6 the current state of matters so that -- and I would simply indicate that

7 obviously any material adduced as part of an ongoing investigation would

8 be subject to the requirements with respect -- under the Rules as to how

9 they are disclosed and the timing that is then given in response. So I

10 think we can deal with those matters as they may arise, but the indication

11 is that the investigation is an ongoing one.

12 If there is nothing -- is there anything further, Mr. Apostolski?

13 Is there any issues you wish to raise on the question of disclosure?

14 MR. APOSTOLSKI: [Interpretation] I would like only to confirm my

15 statements from yesterday's conference regarding the disclosure of

16 evidence, that is that it is an ongoing process and we are submitted

17 documents within the time-frame that my learned colleague has described.

18 Thank you.

19 JUDGE PROST: Thank you very much, sir.

20 If there's nothing further then on that particular issue, it

21 appears to be proceeding fairly well and I urge all counsel to continue

22 to, as they have been doing, to discuss any disclosure issues amongst

23 themselves that might arise in the course of the -- the process.

24 If we could touch then just briefly -- I simply wanted to confirm

25 on the question of the agreed facts proposal. There is ongoing work on

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1 that in terms of the reports on progress from Defence counsel on this. I

2 understand that counsel has indicated - I think correctly so - that there

3 is no longer a requirement for the translation of the agreed facts

4 proposal so that we will be able to deal in the Scheduling Order with the

5 timing for the reports on progress on that.

6 I take it that is the case, Ms. Residovic, that there is no longer

7 a need for the agreed facts translation?

8 MS. RESIDOVIC: [Interpretation] Quite right, Your Honour.

9 JUDGE PROST: Thank you very much.

10 If we could touch briefly on the length of trial question. I do

11 note that the Prosecution has submitted on the 29th of June a proposed

12 second amended witness list, including 101 witnesses, 70 of which are

13 listed as 92 bis witnesses; 29 viva voce; and two expert witnesses. And

14 the Prosecution has given an estimation of 130.5 days, or approximately 35

15 court days, seven weeks, for the Prosecution case. And I wish to -- the

16 Chamber wishes to note its appreciation for the efforts that the

17 Prosecution has made to shorten the case in -- in this manner.

18 Any comments or issues on the length of time?

19 Mr. Saxon.

20 MR. SAXON: I don't have a comment on the length of time, Your

21 Honour. Simply, I need to confirm an error that was brought to the

22 Prosecution's attention yesterday at the meeting related to the proposed

23 65 ter -- the proposed second amended witness list, and that is that there

24 were, I believe, three witnesses which were described as viva voce

25 witnesses when they should have been described as Rule 94 bis witnesses.

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1 And those were witnesses Simon Eichner, number 126; Klaus Stein, number

2 127; and Terry Burgess, number 128. And with the Chamber's leave, the

3 Prosecution, hopefully in the next few days, will file a corrected version

4 of its proposed second amended witness list to correct this error.

5 JUDGE PROST: Thank you very much.

6 I take it counsel would have no objection to the corrected version

7 being filed? I see no objection.

8 So, yes, that would be helpful, Mr. Saxon. Thank you for that.

9 Any issues, counsel?

10 Ms. Residovic.

11 MS. RESIDOVIC: [Interpretation] Thank you very much, Your Honour.

12 I just wanted to mention that it is not possible for us to give

13 our views to all these proposals. There is this list received from the

14 Prosecutor as to the length of the trial, because first of all we have to

15 answer all these questions within the time-limits prescribed by the Trial

16 Chamber. The Prosecution made a proposal under 92 bis, and we have to

17 answer that because we have to make sure that the rights of the accused

18 are protected. The trial must be fair, in other words, and also it must

19 be a public trial and as says -- as Article 21 says, we have the right to

20 cross-examine Prosecution witnesses.

21 So once the Trial Chamber has made its decision as to the proposal

22 made by the Prosecution under 92 bis, then, only then, can we discuss the

23 issue of the length of the trial, because now we have no submissions to

24 make. All this has to be put into our applications.

25 Thank you very much.

Page 172

1 JUDGE PROST: Thank you very much for that, and certainly let me

2 be clear that this was in no way intended to prejudge the issue of the

3 92 bis witness proposals or any other of the proposals put forward. I

4 certainly appreciate the comments that you have made that those are

5 matters that have yet to be decided and certainly there is an important

6 balance to be struck in consideration of that, which will be taken into

7 account. It was simply recognition of the fact that there have been

8 efforts made to put forward a proposal for the length of trial, which is

9 appreciated, but certainly that is all subject to the decisions that will

10 be taken by the Chamber. Okay?

11 If there's nothing further on that particular point, we come to a

12 couple of the significant issues. The scheduling of the decision -- the

13 submissions, the various outstanding submissions and material that has to

14 be filed. There have been, obviously, some change of circumstances with

15 the appointment of counsel for Mr. Boskoski, which will necessitate an

16 overall consideration of the -- of the scheduling of these matters.

17 What I wanted to do -- I would like to hear from counsel, from

18 both the Prosecution and Defence, if there are any additional submissions

19 they wish to make on the scheduling question, in particular two issues.

20 One is whether there is -- whether the initial order on translation and

21 the running of time from translation, whether that has any relevance at

22 this stage in light of the appointment of counsel; and secondly, just any

23 additional submissions to that which have already been made in writing. I

24 know I have proposals on very specific -- very specific proposals on

25 deadlines for the submission of outstanding material, particularly in the

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1 case of Mr. Boskoski because there are a number of outstanding matters

2 there. But I simply wanted to take any additional submissions and then I

3 will -- there will be a Scheduling Order issued, albeit I'm not going to

4 do it orally today, but I am going to do it forthwith.

5 So, first of all, could I hear from Mr. Saxon as to any

6 submissions on the translation question and generally on the outstanding

7 motions. And if I can just highlight the areas that are outstanding. The

8 pre-trial briefs of the Defence, 92 bis motions, the expert reports,

9 reports on progress related to the proposed agreed facts, and the

10 challenges to the authenticity of the exhibits.

11 Mr. Saxon.

12 MR. SAXON: Yes, Your Honour.

13 With regard to the issue of the Trial Chamber's previous order

14 regarding time-limits running from the date of translation of submissions

15 by a party, in the Prosecution's submission, now that both accused are

16 represented by counsel who are fluent in one or more of the working

17 languages of the Tribunal, that order, which varies the normal rules

18 regarding time-limits to responses, is no longer necessary and that it

19 would be appropriate for these proceedings to revert back to the normal

20 practice in this Tribunal, which I believe is governed by Rule 126.

21 On the second matter that Your Honour raised regarding the

22 time-limits or deadlines for outstanding materials from the Defence, I

23 believe the Prosecution has made its position clear in its recent response

24 to a recent motion by the accused Boskoski seeking additional time and new

25 deadlines, and we have nothing more to add to that.

Page 174

1 JUDGE PROST: Thank you very much.

2 Ms. Residovic.

3 MS. RESIDOVIC: [Interpretation] Your Honour, nothing to add to

4 what we have said already. We would only mention for the sake of the

5 transcript that in July we signed a contract with the Macedonian

6 government. They promised to help the Defence team of Mr. Boskoski, but

7 it's not yet in force. And as you know, the entire team present here

8 still works pro bono. I hope all the problems will be solved within the

9 time-limits you are going to order in your order, in your decision, but

10 you would like to know that if these problems fail to be solved, the

11 Defence might be in a position that makes it necessary to submit the

12 questions to you again. But I hope it's not going to be the case.

13 Thank you very much.

14 JUDGE PROST: Thank you for that. Hopefully we won't have to face

15 that eventuality and that the negotiations will proceed successfully.

16 Thank you for those submissions.

17 Mr. Apostolski.

18 MR. APOSTOLSKI: [Interpretation] I would like to just add, but as

19 I said at yesterday's conference, I would like to point out the concern of

20 the Defence and of my client about the sooner scheduling of the trial,

21 having in mind that my client has already been in detention for over a

22 year and a half. When it is about -- when it is the case of detention,

23 when it is insisted for an expeditious start of the trial, and I would

24 like to highlight here that also the Court should bear this in mind that

25 according to the Macedonian legislation, the maximum length of detention

Page 175

1 is up to one year.

2 That would be it.

3 JUDGE PROST: Thank you for those submissions. Certainly that is

4 an important consideration and one of the considerations that will be

5 taken into account in terms of the -- the scheduling of matters because it

6 is important -- albeit the trial date has not been set, it is still

7 important to have the case as ready as possible in order that that could

8 be facilitated in terms of the setting of the trial date. So that

9 certainly is a factor. And that factor will be weighed along with the

10 submissions that have been made in setting up the Scheduling Order. I

11 would simply emphasise to counsel, and I know there have been recent

12 changes and there is -- that necessitates additional work for counsel, but

13 I would encourage particularly with respect to those matters which have

14 been the subject of previous orders and previous deadlines, that work on

15 those items proceed quickly as possible in order that we can try and set a

16 schedule that properly balances the needs of counsel for preparation, but

17 also the rights of the accused and the need for this matter to proceed at

18 a good pace. So I would exhort counsel to take that into account in your

19 work, pending the issuance of the Scheduling Order which, as indicated, it

20 will be issued shortly, hopefully in the next few days. So you will have

21 that before you to proceed upon in relation to all the outstanding

22 motions. And also, there will be decisions on the outstanding

23 jurisdictional and indictment motions in due course.

24 Is there any other issues relating to the scheduling that anyone

25 wishes to touch on? And if not, before we proceed to the state of the

Page 176

1 accused, are there any other matters, aside from the state of the accused,

2 that either side wishes to raise?

3 Mr. Saxon, I see an indication that you have another issue to

4 raise.

5 MR. SAXON: Yes, Your Honour.

6 Related to the outstanding motion from the accused Boskoski

7 challenging jurisdiction under Rule 72, to facilitate the work of the

8 Chamber I would simply like to direct its attention to two matters. In

9 the Defence's motion, paragraph 24, page 9, there is a statement that

10 says -- there's an argument that says: "The Prosecution must allege and

11 prove the defendant's knowledge of the armed conflict in the indictment."

12 And the Defence cites the appeal decision from the Naletilic case, which

13 is also known colloquially as Tuta and Stella. It cites paragraph 120 of

14 that appeal decision.

15 However, a careful reading of paragraph 120 from that decision

16 shows a slightly different holding. Paragraph 120 of that decision says

17 that that the accused's knowledge of armed conflict must be proven by the

18 Prosecution as an ordinary, emphasis mine, element of its case. In order,

19 nowhere in that text of that judgement does it say that the accused's

20 knowledge or awareness of the kind of armed conflict that is relevant to

21 his indictment is a jurisdictional element. And I just wanted to bring

22 that to the Chamber's attention.

23 In the same motion challenging jurisdiction, the Defence argues

24 that any -- any theory of criminal responsibility used in an indictment

25 before this Tribunal must have its -- must have a clear basis in customary

Page 177

1 international law.

2 I see my colleague has risen. I don't know whether I should stop

3 or --

4 JUDGE PROST: Ms. Residovic, could we wait until Mr. Saxon has

5 completed his submissions, and then I will certainly give you an

6 responsibility to respond?

7 MS. RESIDOVIC: [Interpretation] Your Honour, I'm sorry, I just

8 wanted to say that all the motions, replies, and responses have been

9 filed. And I did not understand -- I did not understand that this was

10 going to be a hearing where we were going to speak on the merits of the

11 motions. It is up to the Trial Chamber to decide on our motions. I do

12 not believe that it is at all necessary for the Prosecution to provide

13 further arguments to the ones mentioned in their replies.

14 Thank you.

15 JUDGE PROST: Thank you.

16 I do have some concerns, Mr. Saxon, because the materials were

17 filed, but what I will do is I'll allow you to complete your comments and

18 the -- then I will certainly give an opportunity for a response to it.

19 Did you want to -- did you have some brief further comments on the

20 jurisdictional argument? Because there have been materials filed on the

21 motion as pointed out by counsel.

22 MR. SAXON: I accept that, Your Honour. I also understood that

23 because these motions are pending we would have the opportunity to discuss

24 pending matters, both parties would have this opportunity.

25 Very briefly, the argument from the Defence that customary

Page 178

1 international law does not provide for a -- a theory of command

2 responsibility based on conduct of subordinates other than the classic

3 notion of commission. And I would simply refer the Trial Chamber to

4 volume 11 of the reports of the International Military Tribunal, the high

5 command case --

6 JUDGE PROST: I think I can stop you there, Mr. Saxon --

7 MR. SAXON: All right.

8 JUDGE PROST: -- because we will certainly have regard to those

9 relevant materials on that issue.

10 MR. SAXON: Fine.

11 JUDGE PROST: Okay. If there's nothing further on any other

12 points.

13 MR. SAXON: And indeed, I must say that when we received a message

14 from the Senior Legal Officer asking for agenda points for this

15 conference, one of the agenda points submitted by the Prosecution were

16 outstanding motions, including the motion challenging jurisdiction.

17 JUDGE PROST: Yes. No, I can appreciate that. I think the -- we

18 took that to mean if there were questions about when -- when the decisions

19 might be issued or questions about timing of that matter. But in any

20 event, I think I have your submissions and we also have them -- the

21 written material that's being considered, and we will certainly look at

22 the legal issues.

23 Madam Residovic.

24 MS. RESIDOVIC: [Interpretation] Thank you very much, Your Honour.

25 I shall not reply to the submissions because we all know the

Page 179

1 rules. If there is anything to be added, we should ask for the Trial

2 Chamber's leave to have a hearing so that we can express ourselves, but

3 we're not going to speak about those motions, not this one either. If

4 there is no express request by the Prosecution, this is not the place to

5 mention these arguments. It all has been filed with the Chamber, and it

6 is up to the Chamber to make a decision.

7 Thank you.

8 JUDGE PROST: Thank you very much. And be assured that the

9 Chamber will be considering all of the arguments that have been advanced

10 and will be issuing its decision based on its view of the -- the legal

11 position based on the arguments advanced by both parties, which have been

12 quite thoroughly set out in the material submitted. So I don't think

13 there should be any difficulties with respect to that point.

14 All right. Then if there are no other issues -- counsel, anything

15 else, other than we will proceed to deal with question of the state of the

16 accused.

17 Now, normally I would simply address the individuals directly on

18 this question. Before I do that, I understand there was some discussion

19 of this issue yesterday at the 65 ter meeting, and so I wanted to see if

20 counsel, first of all, wish to make any submissions on the question of the

21 state of health of the accused.

22 MS. RESIDOVIC: [Interpretation] Thank you very much, Your Honour.

23 Yesterday during the 65 ter meeting, we mentioned some arguments

24 very briefly, because in our view the issue of the state of health of the

25 accused is closely linked with the issue of fair trial and the protection

Page 180

1 and defence of his fundamental rights.

2 You know already, Your Honour, that our client had some problems

3 faced with a decision by the Registry as to contribution to the payment of

4 his defence team. It was quite a shock for him and for his counsel, but

5 then he decided to defend himself. But as a professional lawyer, I knew

6 very well that my client has no legal experience before courts in his own

7 country alone. So he was not in a position to defend himself. We told so

8 to the Registry and the Trial Chamber. We decided to work pro bono in

9 order to defend his rights.

10 So for a period of three months I received various arguments or

11 arguments from the Prosecution saying that the Prosecution went beyond his

12 rights, the rights that are the Prosecution's rights, in this process. We

13 said that very accurately in our replies or responses to the Prosecution's

14 questions. We are of the view that the Prosecution took a position that

15 should not be the position taken by the Prosecution. The accused says --

16 or the Prosecution says that the accused is wasting the money of this

17 Tribunal. This argument is repeated over and over again.

18 If you look at -- without looking at the indictment, the

19 Prosecution wanted to show to the Judges that they have a bad man in front

20 of them, that he has bad friends, and that the party which is his is a

21 party -- I can't find my words well. So he's -- the Prosecution are even

22 challenging the elections, the new government.

23 We do not want to repeat everything that has been said very

24 precisely in our written submissions, but to sum it up there was a

25 decision by the Registry and it was felt as an unfair decision by -- and

Page 181

1 not a fair -- not a true decision by our client. There have been so many

2 motions, so many responses by the Prosecution in which they attacked by

3 client directly. They accuse him within the -- an accusation, and this

4 makes his state of health very, very difficult. I told this to the

5 director, the commander, of the Detention Unit. I told him about my

6 client's position. I also informed the Registry of his situation, and we

7 would like the Judges to tell the Prosecution that they should stop

8 providing arguments that are not in any way linked or relevant to his

9 position. They should not interfere with the exchanges between the client

10 and his pro bono client [as interpreted], but all this did not happen.

11 And as a result, my client was in a very bad situation. He's under

12 medical control all the time, is under medication, and this is the reason

13 why I believe he should present himself, his own request, to you.

14 On the basis of all this, Your Honour, I beg you to make sure that

15 the fundamental rights of the accused be protected, that he should be

16 given the possibility to defend himself within a fair trial.

17 This is all I wanted to submit to you today, Your Honour, because

18 the other arguments have already been filed.

19 Thank you very much.

20 JUDGE PROST: Thank you.

21 Mr. Saxon.

22 MR. SAXON: Your Honour, very briefly, on the 10th of May, 2006,

23 the accused Boskoski filed a confidential motion to ensure a fair trial.

24 And in that motion the accused Boskoski sought the assignment of counsel

25 by the Trial Chamber and also extensions of time to complete certain

Page 182

1 matters. The Prosecution responded to the accused's motion on the 16th of

2 May, 2006. On the 19th of May, 2006, the Trial Chamber issued its

3 decision on the motions on fair trial and extensions of time. It denied

4 the accused Boskoski's request for assignment of counsel. It granted the

5 accused's requests for some extensions of time. And it affirmed virtually

6 all of the points and arguments made by the Prosecution in its response.

7 Very briefly may I go into private session, Your Honour?


9 Private session, please.

10 [Private session]

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 [Open session]

24 THE REGISTRAR: We're back in open session, Your Honour.

25 JUDGE PROST: Continue, Mr. Saxon.

Page 183

1 MR. SAXON: I would simply recommend that the accused Boskoski

2 review those submissions and the decision of the Trial Chamber, and I

3 think that would help clarify the matter.

4 JUDGE PROST: Thank you.

5 On this issue, I can certainly appreciate that particularly when

6 an individual is acting on his own behalf that that may increase the

7 pressures and the tensions and the difficulties, it may also create a

8 situation of perceptions that comments or submissions or arguments are

9 aimed in a personal manner in -- are aimed in a personal manner at the

10 individual. But certainly objectively having reviewed the motion

11 materials, the responses that have been filed by counsel in this matter,

12 as I did, objectively I simply don't see any personal attacks in the

13 materials that have been filed by the Prosecution, albeit I understand

14 there may be perceptions of that on the part of Mr. Boskoski particularly.

15 What I would suggest here is that we have now entered a new phase

16 because there is now counsel representing Mr. Boskoski, very able counsel,

17 who I'm certain can deal with all of the arguments presented back and

18 forth on these various issues, and I would simply suggest that we move

19 forward from this point with the new situation and the new circumstances.

20 And I'm quite certain that's going to make quite a difference in terms of

21 the impact of this or the perceptions that are created through the

22 exchange of submissions.

23 I do, however, want to hear mostly very much focussed on whether

24 there are any current health or physical or mental issues that either of

25 the accused wish to bring to my attention, any difficulties in terms of

Page 184

1 treatment, and I wish to just to focus on the present at this time as to

2 whether there are particular health issues or issues of that nature that

3 either of the accused wish to bring to my attention.

4 So perhaps if we could begin with Mr. Boskoski, and if he could

5 advise me directly if there are any particular points he wishes to make

6 about the state of his health or about treatment or medical issues that

7 are of concern to him at this time.

8 Mr. Boskoski.

9 THE ACCUSED BOSKOSKI: [Interpretation] Your Honour, I don't know

10 how much time I have available and whether I could add something, a

11 sentence or something, to what has already been said. If the time allows

12 and if this Court allows, I would like to say a few words which are

13 directly related to my health status, the impact on my health from the

14 treatment of some of the officials.

15 First of all, I fully agree with what has been said by my

16 attorney, Ms. Edina Residovic. Also, I fully agree with her position

17 regarding the other issues that were presented here today. You know the

18 Trial Chamber is informed that in the period that passed, I used to live

19 in exceptionally difficult circumstances, in a state of psychosis, which

20 was caused not -- not jeopardising my existence, material or physical, but

21 the subsistence of my family, of my past, that I used to build in the past

22 40 years, at least according to the position of all Macedonians and

23 friends from -- of other nationalities, not only in Macedonia but around

24 the world I'm known to be a different person than the one that -- with

25 some misanthropic accusation is persistently brought to your attention

Page 185

1 that this is an immoral person here before you, a person who is a

2 perpetual crime perpetrator, something that in the recent history of law,

3 ever since the time of the lords when they were [indiscernible] I haven't

4 found about this, I haven't read about this in this European reference or

5 in the global, legal reference materials. So I could not understand the

6 claims of the Prosecutor over the past period. And you, Your Honour, have

7 recognised well that this has an impact and that I understand this in a

8 personal manner. It is true that the position of the Prosecutor I

9 understand to be personal, but it must not mean that I in my present

10 position and in my practice thus far have had at any moment -- so at no

11 moment I have questioned the institution that I hold in the high esteem,

12 and this is the distinguished Tribunal here and all the employees within

13 the Tribunal.

14 Therefore, once again, I must expresses my strong gratitude to the

15 Registry, to the employees in the Registry, that in the most difficult

16 moments in my life, the ones that I'm spending in my cell in Scheveningen,

17 were on my side, asking about my health status.

18 Also, I hold in the highest esteem everything that the Chamber did

19 for me and I am convinced that it will have a fair trial and that I will

20 manage to prove my innocence before this distinguished Tribunal.

21 Therefore, I really feel painful the argument that I am not respecting the

22 Court and that I am wasting money of the Court. For me, this was a strong

23 blow.

24 I would not like to take much of your time here, but I would like

25 to present here a number of legal experts who hold PhD in law from Canada,

Page 186

1 the United States, the European countries, starting with Germany, France,

2 where lecturers, professors, PhD in law have attorneys in ordinary civil

3 litigations, let alone criminal litigations. Therefore, I have spent many

4 sleepless nights because of such positions and my health is significantly

5 endangered. And now the question is: If such style of attacks continues,

6 such way of treatment that I don't know whether I will live to have the

7 start of the trial. I feel poorly in the recent days, my health

8 deteriorates day in, day out and my nervous system is threatened, so I

9 don't know why. I don't know what brings this strength, or this force,

10 this insult to my dignity. I could not understand this differently but as

11 a personal attack against me. I am grateful to the Prosecutor for

12 appreciating strongly that I could defend myself, but I could not even

13 continue living on my own, let alone defending myself.

14 Therefore, I could not allow and I will not allow at any moment

15 that something that is outside of the Rules of the Tribunal and something

16 that is not allowed to be addressed against me. Surely one must raise the

17 issue why I haven't complained against the decision of the Registry

18 regarding the co-financing -- actually financing of my defence.

19 The Registry, as a part of this distinguished institution, The

20 Hague Tribunal, I have the highest respect for, but the individual who

21 used to work on my case has taken the liberty that things which are not

22 allowed and which should not be discussed in the open court, things that I

23 will write to you later about, Your Honour. I could speak at lengths, but

24 in the interest of time I would like to say that the Court should have

25 equal respect for both the Prosecution and the Defence. It couldn't be

Page 187

1 that the Prosecution, although it is appointed by the United Nations, by

2 the highest global institution, a global organisation, it could not have

3 against an individual who is alone in his defence use and/or abuse all the

4 mechanisms and means that it has available.

5 Thank you.

6 JUDGE PROST: Thank you, Mr. Boskoski. I wish to assure you again

7 that certainly the Tribunal regards both parties equally.

8 I'm taking it from your comments that the Registry is taking its

9 responsibilities appropriately and responding to any requests you have

10 regarding the state of your health. I hope that your health improves, and

11 I'm taking it that you have no particular complaints with reference to any

12 access to treatment or things of that nature.

13 Again, I reiterate what I said earlier, that I think there are

14 difficulties created by virtue of the fact that you were representing

15 yourself and the perceptions that may arise from that, but certainly as I

16 indicated, objectively the material that has been filed by the Prosecution

17 is, in my view, not intended as a personal attack on your character and

18 has not been interpreted in any way in that way by the Chamber.

19 So I appreciate you've now had an opportunity to express your

20 concerns as indicated. Hopefully with the appointment of counsel that's

21 going to help this situation for the future. So we -- I certainly have

22 taken note of the concerns that you have raised and would reiterate the

23 comments that I made and hopefully we can proceed with the matter on a

24 non-personal basis.

25 Thank you, sir.

Page 188

1 THE ACCUSED BOSKOSKI: [Interpretation] I thank you, Your Honour.

2 JUDGE PROST: Mr. Tarculovski, do you have any issues that you

3 wish to raise in terms of your state of your health, mental, physical

4 issues?

5 THE ACCUSED TARCULOVSKI: [Interpretation] Not, Your Honour. My

6 health is all right, regarding that I have no questions. But the question

7 of assigning of a co-counsel which I filed -- for which I filed a request

8 two or three months ago and I had received no response whether it has been

9 received or not. I expect at least to know whether there is some decision

10 regarding that matter.

11 JUDGE PROST: Thank you for that.

12 Counsel, has there been any information conveyed back on the issue

13 of co-counsel?

14 MR. APOSTOLSKI: [Interpretation] For assigning co-counsel,

15 Mr. Tarculovski has filed a personal request about the person he wishes to

16 have as co-counsel that has been filed, as he said, two or three months

17 ago to the Registry. And I have not been informed about anything of that.

18 JUDGE PROST: Thank you. Well, certainly we can follow up with

19 the Registry as to where that matter stands, Mr. Tarculovski. And nothing

20 further?

21 THE ACCUSED TARCULOVSKI: [Interpretation] [No interpretation].

22 JUDGE PROST: Thank you.

23 Any other points or issues from anyone at this stage of the

24 proceedings?

25 Then I would simply encourage the parties to continue to

Page 189

1 communicate on any of the outstanding issues.

2 I thank you all for your submissions and contributions today, and

3 we are adjourned.

4 --- Whereupon the Status Conference

5 adjourned at 10.11 a.m.