1 Friday, 21 September 2007
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.02 a.m.
5 JUDGE PARKER: Good morning.
6 Mr. Saxon.
7 MR. SAXON: Your Honour, may we move very briefly into private
9 JUDGE PARKER: Private.
10 [Private session]
19 [Open session]
20 THE REGISTRAR: Your Honours, we're back in open session.
21 [The witness entered court]
22 JUDGE PARKER: Good morning, Mr. Tucker.
23 THE WITNESS: Good morning, Your Honour.
24 JUDGE PARKER: The affirmation you made still applies.
25 THE WITNESS: Thank you, sir.
1 JUDGE PARKER: Mr. Mettraux.
2 MR. METTRAUX: Thank you, Your Honour.
3 WITNESS: HOWARD TUCKER [Resumed]
4 Cross-examination by Mr. Mettraux: [Continued]
5 Q. Good morning, Mr. Tucker.
6 A. Good morning, sir.
7 Q. You recall last night when we brought-- I was asking about
8 information that had or hadn't been passed to the Macedonian authorities.
9 Do you recall that?
10 A. I do, sir, yes.
11 Q. And do you recall a particular or is it within your recollection a
12 particular meeting when Prosecutor Dragoljub Cakic had asked to you
13 provided any information you had about the events at Ljuboten? Do you
14 recall that?
15 A. I don't recall that, no, sir.
16 Q. Could I ask you to turn to tab 34 of your first binder, please.
17 A. Yes, sir.
18 Q. Thank you. This is one of the notes that you prepared and what
19 we've seen already. This one is dated the 29th of November of 2001, and
20 present were Mr. Dragoljub Cakic, deputy prosecutor; his assistant,
21 Mr. Konevska; yourself; Mr. Milner; Mr. Szydlik; and Ms. Brajovic.
22 And I will ask to you turn to the second page of that document,
23 please. And if you look at the first paragraph on the top, you record
24 number of statement or remark made by Mr. Cakic. I will ask you to look
25 at the second one, the second paragraph on that page.
1 It says that Mr. Cakic said the following: "He also requested
2 that any information that the ICTY had on the events in Ljuboten be
3 delivered to the investigative judge appointed by the judicial court in
4 order that he can present it to the court for due consideration. He
5 repeated the fact from the previous meeting that the investigative judge
6 had little or no firm evidence to work with and any assistance that the
7 Tribunal can offer would be appreciated."
8 Do you recall or does that help refresh your memory in relation to
9 that point, Mr. Tucker?
10 A. That does refresh my memory. Thank you, sir.
11 Q. And do you recall that at this stage, in response to the query or
12 the request made by the Macedonian authorities, Mr. Milner responded that
13 he would pass on the request to his superior upon his return to The Hague,
14 to see whether any information had been released? Do you recall that?
15 A. I do, sir, yes.
16 Q. But is it a fact, Mr. Tucker, that in reality none of the material
17 that had been collected up to that point, or for that matter up to May of
18 2002, was provided to the Macedonian authorities. Is that correct?
19 JUDGE PARKER: Mr. Saxon.
20 MR. SAXON: Your Honour, I must object, again, to the relevance of
21 this line of questioning. In the Prosecution's submission, when the
22 accused, Mr. Boskoski, had notice of the possibility that crimes had been
23 committed by his subordinates in the village of Ljuboten or nearby,
24 Mr. Boskoski then had a duty to take reasonable and adequate measures to
25 investigate those allegations. And according to the evidence in this
1 case, Mr. Boskoski, as of the 13th of August, 2001, had notice, because
2 that was the day when Mr. Boskoski himself, according to the evidence,
3 established a commission to investigate the conduct of members of the
4 Ministry of Interior in Ljuboten.
5 And, again, the Prosecution, then, sees no relevance between
6 whether members of the Office of the Prosecutor provided materials to the
7 judiciary and the duty of Mr. Boskoski to take reasonable and adequate
8 measures to investigate whether his subordinates had committed acts of
9 misconduct or violations of international humanitarian law in the village
10 of Ljuboten. And, perhaps, my colleague can explain what the relevance
11 is, but I don't think that is clear.
12 JUDGE PARKER: Mr. Mettraux.
13 MR. METTRAUX: One of the relevance, Your Honour, and one of the
14 most obvious, perhaps, is the fact that the Prosecution is now charging
15 Mr. Boskoski with failing to do a number of things, which we submit, one,
16 he had no obligation to do; but, secondly, he would have been unable to do
17 in the circumstances. And the -- those things or some of those things
18 which the Prosecution suggest he should have done or he should have
19 obtained, the Prosecution had, in fact, had in his position and never
20 delivered to the authorities.
21 We seen from the materials that representations were made by the
22 OTP to the Macedonian authority that there would be a cooperation and
23 assistance on part of Office of the Prosecutor with the investigation.
24 This material, in particular the statements of some of at least one of the
25 victims, was not provided to the Macedonian authorities to our knowledge.
1 This material could have assisted the authorities in Macedonia, could have
2 advanced the investigation, regardless of who was in charge of it.
3 What we establish to that fact, Your Honour, and what Mr. Saxon
4 forgot to mention is that the third element of command responsibility
5 would the ability in the circumstances at that time to do certain things.
6 What we wished to establish in this case is that a number of things were
7 impossible for the authorities to do and that access to certain material
8 could have been provided by the Prosecution, wasn't provided by the
9 Prosecution despite the fact that they had them in their possession.
10 And in effect, if certainly not intentionally, the actions of the
11 Prosecution hindered the ability of the local authorities to proceed with
12 the investigation. In effect, Mr. Boskoski, we submit, is, in part,
13 accused of failure which could, again, in part, be attributed to other
15 MR. SAXON: Your Honour, if Mr. Mettraux is right, then, in the
16 Prosecution's submission, the legal -- the legal duty to take reasonable
17 and adequate measures to investigate the events in Ljuboten is now somehow
18 being shifted from the Accused Boskoski to the Office of the Prosecutor.
19 And in the Prosecution's submission, that -- that cannot be right, and I
20 don't know if Mr. Mettraux has any jurisprudence or authority that he can
21 cite. But the issue in this case is what could Mr. Boskoski have done and
22 what did he do. There is no issue as to what the Office of the Prosecutor
23 did or did not do in terms of providing information back and forth to
24 authorities of the government of Macedonia.
25 And quite frankly, Your Honour, we have also heard a great deal of
1 evidence from members of the Macedonian police who have told the Chamber,
2 very emphatically, that the police could not access information in the
3 hands of the judiciary that couldn't be done. And so, again, I believe we
4 were told that by Risto Galevski and we were told that by General Zoran
6 And, again, if that is the case, why would it be relevant whether
7 the Office of the Prosecutor passed information back to members of the
8 judiciary, if such information then was apparently would still be unable
9 to Mr. Boskoski.
10 MR. METTRAUX: Your Honour, very briefly, concerning the legal
11 authorities which Mr. Saxon is seeking, this is not the suggestion of the
12 Defence that somehow the duty to take certain measure passed from someone,
13 which we say was not Mr. Boskoski in any case, to the Office of the
14 Prosecutor. But from the legal point of view, we will draw the attention
15 of the Chamber to an Article of the Statute which they know very well,
16 which suggests that the Prosecution shall investigate those crimes which
17 we say they did in the circumstances.
18 The point here, Your Honour, is that the Chamber will have to take
19 into consideration, if it were to consider, the third element of command
20 responsibility, namely, the issue of the circumstances under which the
21 authority were labouring at the time, we submit that you should fully
22 integrate into those consideration the fact that material was available at
23 the time in the possession of the Prosecution, that the authorities in
24 Macedonia had made explicit request not only for those document which I
25 have indicated, but, as will become clear, to other sorts of particular
1 items of material which would have directly assisted the authority in
2 moving forward with the investigation, ballistic material, DNA material
3 which they sought from the Office of the Prosecutor and which the
4 Prosecution did not deliver to the authority, despite making promises to
5 that effect. Several years later, the Prosecution, having denied the
6 authorities, which they say will the obligation to investigate, are now
7 moving to suggest that Mr. Boskoski failed to take the measures which the
8 Prosecution took at the time, and they could have assisted at the time.
9 [Trial Chamber confers]
10 JUDGE PARKER: The submissions of the parties have been developed
11 and matured in a way that was not apparent earlier. It still appears that
12 the submissions of Mr. Mettraux largely proceed as though it was the state
13 of Macedonia that was on trial for failing to effectively conduct complete
14 and investigation and punish. It is not the case. The case is whether
15 Mr. Boskoski, in whatever his particular role was, whether he was in a
16 position to investigate; and, if so, what he did in that regard. And if
17 the steps that were available to him in the end did not avail him to be
18 able to complete or to do anything further or did not enable the stage to
19 be reached of punishment, well, then, clearly, if he had done what was
20 open to him, there would not be a conviction.
21 That having been said to make clear why it is that the Chamber is
22 very hesitant about this, we do see that there is a possibility at the
23 moment, and it is no more than that, that Mr. Boskoski did not act because
24 he, in fact, was denied access to certain material that might have
25 advanced his efforts further.
1 Now, I phrase that deliberately as a possibility that might be
2 open. Because of that, and to ensure that the fullest potential relevance
3 is explored, we allow Mr. Mettraux to proceed with his present line of
5 MR. METTRAUX: I'm grateful to Your Honour.
6 Q. Mr. Tucker, perhaps, going back to the last question that I had
7 asked you, are you a aware -- perhaps, I will rephrase it in more general
8 terms. Are you aware that any of the material that had been collected by
9 the Office of the Prosecutor, during the period from the 14th of August of
10 2001 up to the 8th of May, 2002, had been provided to the competent
11 Macedonian authorities? Are you aware of that?
12 A. No, sir, I'm not.
13 Q. Do you recall that, during some of your meetings with the
14 Macedonian authorities, another issue that came up was the issue of the
15 identification of the deceased? Do you recall?
16 A. I do, sir, yes.
17 Q. And the decision that was taken between yourself and the authority
18 was that a DNA testing should be carried out. Do you recall?
19 A. I do, yes, sir.
20 Q. And do you recall also that the authorities locally wished to
21 carry out this test themselves or you convinced them that it should be
22 done by experts selected by you; is that correct?
23 A. I can remember the discussion. I can't, unfortunately, remember
24 the precise details, sir.
25 Q. But will you recall that the investigative judge, Judge
1 Nikolovski, agreed with your proposal then, and that, in fact, the
2 responsibility to carry out this test was given to you?
3 A. I do, sir.
4 Q. And do you also recall that you undertook at that time to provide
5 the results of the DNA tests in timely fashion to the local authorities
6 for them to be able to carry out their investigation?
7 A. Yes. I recall that we said that we would inform them as soon as
8 we had the results ourselves.
9 Q. And if I can ask you, Mr. Tucker, to turn to your second binder,
10 please, this would be tab 55.
11 A. Thank you.
12 Q. It is Exhibit P49.11, and I will ask you this question while you
13 looking for this one.
14 Is it also correct that your office undertook to provide to the
15 local authority any material that should be found during post-mortem or
16 exhumation and which had been retained by your office. Is that correct?
17 A. Yes, sir, that's correct.
18 Q. Is that also correct that the DNA results that were carried out by
19 your office on behalf of your office were, in fact, never provided to the
20 local authorities? Are you aware of that?
21 A. I'm not aware of that, no, sir.
22 Q. But would you agree that this information, the DNA results, was
23 material and relevant to any investigation, regardless of who is competent
24 for carrying out the investigation? You would agree with that?
25 A. I would, sir, yes.
1 Q. If I can ask you, Mr. Tucker, to look at your tab 55. This is a
2 letter from Mr. Patrick Lopez-Terres, the chief of investigations, to Mr.
3 Nikolovski, dated the 8th of April of 2002. And it says: "Thank you for
4 your fax message of 4 April 2002. I hereby would like to confirm that if
5 any material should be found during post-mortems or exhumation, and retain
6 analysis by the Offices of the Prosecutors, the results of such analysis
7 will be submitted to you in a timely manner."
8 Does that accord with your memory of the -- of the events at the
9 time and the undertaking made to the local authorities?
10 A. It does, sir, yes.
11 Q. I would like now like to turn to the issue of ballistic material.
12 You will recall that, during the exhumation at Ljuboten, a number of
13 ballistic material, ballistic remains were found; is that correct?
14 A. That's correct, sir.
15 Q. Can you recall at the time that the Macedonian authorities had
16 told that you they had all the facilities to conduct an investigation into
17 this ballistic material? Do you recall that?
18 A. I do, sir, yes.
19 Q. And the person who had given that indication to you was
20 Mr. Miroslav Uslinkovski, the head of the crime technique police of MOI?
21 A. Yes, sir, that is correct.
22 Q. And you, yourself, had you the opportunity to verify that, indeed,
23 the facilities of the MOI as pertaining to ballistic material were very
24 good. Is that correct?
25 A. That's correct, yes, sir.
1 Q. But, again, is that correct that your office insisted that the
2 ballistic tests should be carried out by a different organ selected by
4 A. It was a strong recommendation, yes, sir.
5 Q. And this, in fact, is what happened, is that correct, the
6 authorities, again, agreed to this happening?
7 A. Yes, sir, that's correct.
8 Q. Were you aware at that time that, according to local laws, the
9 investigative judge who was in charge of the investigation was required to
10 be present during any such ballistic expertise for the evidence to be
11 admissible in local courts? Are you aware of that?
12 A. I'm not, no, sir.
13 Q. Well, perhaps, I should ask you to look at tab 58 of your binder,
14 please, Mr. Tucker.
15 MR. METTRAUX: This would be an exhibit already, Your Honour. This
16 is P55.14, 1-4.
17 Q. Mr. Tucker, this is a proposal on ballistic examination, as you
18 can see from the title of this document. This comes from the basic public
19 prosecution office. It is signed by Mr. Dragoljub Cakic. It is dated the
20 2nd ever April 2002, and it is dated -- it is sent to the Basic Court
21 Skopje II and addressed to Mr. Dragan Nikolovski, investigative judge.
22 If I can ask you to turn your attention to the third paragraph on
23 that page, which starts with the word: "As you know."
24 Can you see that?
25 A. Yes, sir, I can.
1 Q. It says this: "As you know, in the meeting, the procedure for
2 conducting the exhumation was discussed. However, for the first time by
3 the representative of The Hague Tribunal, Mr. Smith, the question was
4 asked concerning the procedure regarding suspicious object, bullets,
5 cartridge, and metal parts from other types of weapons, which will be
6 found in the bodies of the buried persons and in surroundings where they
7 were buried during the exhumation, as well as the ultimatum attitude that
8 the Tribunal will conduct the necessary expert examination of said
10 Can you see that?
11 A. Yes, sir, I can.
12 Q. And if you can turn to the next page of this document, I will draw
13 your attention to the last paragraph on this page.
14 It says this: "Regardless of the decision by the investigative
15 judge as to who will be assigned to conduct the ballistic expert
16 examination, if a need to do so occurs, whether it is an institution of
17 the Republic of Macedonia or an independent international institution, it
18 is necessary that it is performed in accordance with the provision the
19 Code of Criminal Procedure under your exclusive supervision and, if
20 necessary, with help of experts in the ballistic area determined by you."
21 And I will kindly ask to you turn to the next page, the next tab
22 of your binder. That would be 58 A.
23 As you can see this is an order, this time signed by Judge
24 Nikolovski, who was referred to in the previous document. And the order
25 is to the effect, and I draw your attention to the first paragraph, it
1 says: "To conduct ballistic expert examination of the ballistic material
2 found during the exhumation and prosection; that is, projectiles from
3 fire-arms, metal fragments, and unfired bullets with numbers, BA-1 to
4 BA-40." Can you see that?
5 A. Yes, sir, I can.
6 Q. And if you look further down the document, as you indicated
7 earlier, the authorities that agreed to the proposal made by you and the
8 investigative judge "thereby orders that the expert examination is
9 assigned to the Netherlands Forensic Institute in Rijswijk, The
10 Netherlands." Can you see that?
11 A. Yes, sir, I can.
12 Q. And it says that the expenses are to be borne by the ICTY; is that
14 A. Yes, sir, that's correct.
15 Q. Is it within your knowledge that, following this agreement, the
16 local authorities, then, in agreement with the requirements of their own
17 laws, had requested your office to be present during the ballistic
19 A. I don't recall that, no, sir.
20 Q. Can I ask you to turn to tab 89 of your binder, please.
21 MR. METTRAUX: It is P55.18, Your Honour.
22 THE WITNESS: Yes, sir.
23 MR. METTRAUX:
24 Q. Thank you. Mr. Tucker, if you look at the top left-hand corner of
25 the document, it says Basic Court Skopje II document coming from the
1 investigative judge. It bears the number 601-01. It is dated the 8th of
2 May of 2002. It is addressed to Mr. Lopez-Terres, and it is signed by the
3 investigative judge, Dragan Nikolovski. Do you agree?
4 A. Yes, sir, I do.
5 Q. And what Mr. -- or Judge Nikolovski was writing is as follows: "I
6 have so far asked on two occasions by fax that you confirm in writing
7 that, after the conducted analysis, the expert examination of the material
8 seized by the Tribunal, this entire material will be delivered to me along
9 with the results of the analysis."
10 Can you say that?
11 A. Yes, sir, I can.
12 Q. It goes on to say: "In view of the fact that you only confirm that
13 I will be given the analysis results and it was not explicitly confirmed
14 that the material would be delivered to me, I ask you to do so by fax or
15 that you enable me, as investigative judge, to be present during the
16 analysis of the material which is to be conducted at Netherlands Forensic
17 Institute in Rijswijk. Due to the fact that, in accordance with the
18 provisions of our Code of Criminal Procedure, the investigative judge
19 determines the expert examination (the analysis) with a written order, is
20 present at the expert examination and direct the expert examination."
21 Can you see that?
22 A. Yes, sir, I can.
23 Q. And he goes on to say: "Taking into account that you agreed that
24 all expenses arising from such analysis will be borne by The Hague
25 Tribunal, I ask that you confirm that my expenses regarding my stay in the
1 Netherlands will be covered, as well as the expenses in relation to
2 obtaining a Dutch Visa and the travelling expenses."
3 Can you see that?
4 A. Yes, sir, I can.
5 Q. Are you aware of the fact that, in response to this request from
6 the investigative judge, Mr. Nikolovski, your office refused him the
7 question he had made; namely, to be present during the expert -- the
8 ballistic expertise? Are you aware of that?
9 A. I am not, sir, no.
10 Q. Can you ask you to shift to your first binder, Mr. Tucker, please,
11 and I will ask you kindly to go to tab 25 of your binder, please. This
12 would be Exhibit 1D201.
13 A. Yes, sir.
14 Q. Mr. Tucker, this is a letter we have already gone through on a
15 number of occasion together. This is a letter from Mr. Lopez-Terres to
16 Mr. Nikolovski, and I will ask to you look at this time at the last
17 paragraph on the first page, please.
18 Mr. Lopez-Terres said the following: "Finally, I refer to your
19 request concerning the return of the ballistic material subject of the
20 same Ljuboten investigation to the Skopje II Court. In consequence of
21 Madam Prosecutor's decision, all the ballistic material retained by the
22 ICTY until the conclusion of the investigation conducted by this office."
23 And if you turn the page: "The ballistic material will be
24 forwarded to the Forensic Institute Rijswijk, Netherlands for analysis as
25 planned. During the analysis of this material, no member of this
1 institution will be present. Under the circumstances, there is no
2 necessity for your presence during this process."
3 In view of this letter, Mr. Tucker, would you agree that your
4 office turned down both requests by the investigating judge for the return
5 of the material and his presence during the expertise?
6 A. Yes, sir.
7 Q. And you agree that had those authorities been competent to
8 investigate the case, that material, again, would have been relevant to
9 their investigative work; is that correct?
10 A. Yes, sir, that's correct.
11 Q. Is that also correct that, during your participation in the
12 exhumation at Ljuboten, you took possession of a particular metallic
13 fragment from the door of one of the villagers, Mr. Murati? Is that
15 A. That's correct, yes, sir.
16 Q. And this material was not returned either to the Macedonian
17 authority. It was part of the ballistic material that you kept; is that
19 A. That's correct, sir, yes.
20 Q. And you took possession of that material on behalf of the OTP; is
21 that correct?
22 A. Yes, sir, it is.
23 THE INTERPRETER: The interpreters kindly ask the participants to
24 pause between question and answer.
25 MR. METTRAUX:
1 Q. We have been asked for the first time to make breaks between
2 question and answer, Mr. Tucker.
3 A. Thank you, sir.
4 Q. Is that correct that, during the deferral proceedings in September
5 of 2002, there were still differing views between your office, the Office
6 of the Prosecutor, and the local authorities as regard the status of the
7 victims in Ljuboten? In other words, the view had been taken by the
8 authorities that the five deceased persons were terrorists or members of
9 the NLA; whereas, the Office of the Prosecutor believed at that time that
10 they were or might have been civilians; is that correct?
11 A. Yes. I think it is safe to say -- safer to say, perhaps, that the
12 status of the deceased was -- wasn't ascertained at that time.
13 MR. METTRAUX: Your Honour, simply for the record, I will draw
14 Your Honours' attention to the Trial Chamber's decision on deferral of 4
15 October 2002, footnote 47 at page 15 where this matter is indicated.
16 Q. Can you recall that during one of your meetings with Mr.
17 Uslinkovski, the head of the crime technique department of the Ministry of
18 Interior, the issue of the status of the victims was discussed?
19 A. I'm sure it was, but I can't specifically remember that.
20 Q. Can you recall perhaps that Mr. Uslinkovski sought your
21 assistance, the assistance of your office, in establishing the status of
22 the victims?
23 A. Again, I can't remember the specifics of that, no, sir.
24 Q. Can you recall that Mr. Uslinkovski at the time told you that one
25 of the difficulties which his department had is that at that time they
1 only had the so-called paraffin glove tests to determine whether they were
2 nitrate deposits or gunpowder residue deposits on body parts of a victim?
3 Can you recall that?
4 A. Yes. I can recall vaguely some discussions about this, yes, sir.
5 Q. Can you recall also that he asked you whether it would be possible
6 for you, in the context of this investigation, to provide more
7 sophisticated mechanism or techniques which he knew existed elsewhere?
8 A. I don't remember the specifics, sir. If I may ask, is there an
9 investigator's note?
10 Q. There is. I was about ask to you turn to it, Mr. Tucker. If you
11 can go back to the second binder, please, and I will ask you to go to tab
12 number 49, please. It is Rule 65 ter 1D662.
13 Mr. Tucker, this is, again, an investigator's note. We have seen
14 it before already. This is dated the 7th of March of 2002 at the
15 Department of Criminal Technology, Skopje. Presence are Mr. Uslinkovski,
16 Mr. Dzidrovski, Ms. Brajovic, and yourself, and I will ask you to turn to
17 the third page after that document, please.
18 A. Yes, sir.
19 Q. And I will ask you, in particular, to look at the last paragraph
20 on this page under the Roman IV, please.
21 A. Yes, sir.
22 Q. There you record Mr. Uslinkovski as asking you this: "He asked
23 questions regarding the use of a procedure that records or establishes the
24 presence of this substance by the use of a technique known as atomic
25 absorption or similar. "HT," Howard Tucker, "replied that he was not
1 certain of this procedure and recommended-- Howard Tucker stated that this
2 question was best put to the ICTY forensic pathologist."
3 Do you recall that exchange with Mr. Uslinkovski?
4 A. I do, yes, sir.
5 MR. METTRAUX: And simply, for the record, Your Honour, the
6 technique known as the atomic absorption technique was discussed with Dr.
8 Q. Can you recall what response you obtained from the ICTY forensic
9 pathologist in relation no this matter, Mr. Tucker?
10 A. Again, I don't reckon I remember the specifics, but I believe that
11 I had some exchange with Dr. Baccard on this topic.
12 Q. Is it correct, however, that the atomic absorption or, for that
13 matter, any other more sophisticated technique were not put at the
14 disposal of the local authorities for the investigation at Ljuboten? Is
15 that correct?
16 A. That's correct, sir.
17 Q. Mr. Tucker, you will recall that, yesterday, I asked you about
18 Madam Del Ponte's position as regard the competent organ to carry out the
19 investigation in Macedonia, and I also referred to her familiarity with
20 the ways and functioning of the civil law system. Do you recall that?
21 A. I do, sir, yes.
22 Q. You also recall that I showed you a video of Mr. Boskoski, in
23 which he was asked about the investigation in Ljuboten, in particular
24 about the state prosecutor's investigation of this matter, and he
25 indicated that he had no intention to interfere with this material.
1 Do you recall?
2 A. I do, sir, yes.
3 MR. METTRAUX: Your Honour, can we move in private session for a
5 JUDGE PARKER: Private.
6 [Private session]
11 Pages 5422-5425 redacted. Private session.
3 [Open session]
4 THE REGISTRAR: Your Honours, we're in open session.
5 MR. METTRAUX: Thank you.
6 Q. Mr. Tucker, I'd like to ask you a few more general questions about
7 the nature of a criminal investigation of the sort we are talking about.
8 Is that correct that the way to proceed in such difficult criminal
9 matters is for you, and I suppose your colleagues, to first review the
10 material an information at your disposal to figure out if prima facie
11 there is material to justify an investigation, a full investigation? Is
12 that correct?
13 A. That's correct, yes, sir.
14 Q. And is that also the fact that it is, in fact, what happened in
15 relation to the Ljuboten investigation, before undertaking any further
16 investigative steps such as interviews or exhumation, you took some time
17 to review the material which was in your possession at that time? Is that
19 A. Yes. My colleagues did. I wasn't party to that, sir.
20 THE INTERPRETER: The interpreters would kindly ask the Defence
21 counsel and the witness to pause between questions an answers. Thank you.
22 MR. METTRAUX:
23 Q. We have been warned for the second time, Mr. Tucker.
24 A. Noted, sir.
25 Q. And this process of the review of the material took place, as you
1 said, by this small dedicated team, which Mr. Milner indicated including
2 yourself. The process of reviewing this material and information in your
3 possession took place between, let's say, the middle of August of 2001
4 until the 8th of May of 2002; is that correct?
5 A. Not specifically, sir. I think I mentioned, yesterday, that the
6 dedicated team wasn't formed until the early part of 2002.
7 Q. But the team, the dedicated team, and, perhaps, I can help you
8 refresh your memory, if you look at the your first binder. It is under
9 tab 28 of your binder, which is MFI'd as 1D195.
10 A. Tab, sir? I'm sorry.
11 Q. 28, please.
12 A. Thank you.
13 Q. This is the record of a meeting which took place on the 27th of
14 November of 2001. Do you agree?
15 A. I do, sir.
16 Q. And if you look at the second paragraph on this page, I would read
17 it again: It says that: "Dennis Milner stated that it was his
18 responsibility to assess the current situation in Macedonia relating to
19 the investigations into the Neprosteno and Ljuboten. He explained that
20 the ICTY realised that there were more cases than these; but in respect of
21 them, a dedicated investigation team had been appointed by the Prosecutor,
22 ICTY, to assess the available evidence."
23 So you would agree that, in fact, the dedicated team of
24 investigators was already formed by the Office of the Prosecutor on the
25 22 -- 27 of November 2001 at the latest. Is that correct?
1 A. It is, insofar as it was allocated to Matti Raatikainen as the
2 team leader of Team 7, and I was allocated as being the monitor for these
3 proceedings, for the exhumation proceedings, and that a senior trial
4 attorney had been appointed.
5 Q. You will agree that, in any case, at the latest in November of
6 2001, your office was already involved in carefully reviewing the material
7 in your possession in relation to Ljuboten; is that correct?
8 A. I wouldn't say that, no, sir.
9 Q. Well, isn't that correct that, in that tab, this is precisely what
10 Mr. Milner is suggesting: "A dedicated investigation team had been
11 appointed by the Prosecution, ICTY, to assess the available evidence."
12 Isn't that what Mr. Milner is suggesting?
13 A. It certainly is, yes, sir.
14 Q. Thank you. Can you recall a meeting, a particular meeting, again
15 on the 20th of November of 2001, between Madam Del Ponte and the president
16 of the state or the Republic of Macedonia? Do you recall that?
17 A. Not specifically no, sir.
18 MR. METTRAUX: Your Honour, could we again go in private session
19 for a minute.
20 JUDGE PARKER: Private.
21 [Private session]
11 Pages 5429-5430 redacted. Private session.
8 [Open session]
9 THE REGISTRAR: Your Honours, we're in open session.
10 MR. METTRAUX:
11 Q. Mr. Tucker, I suppose that, obviously, you will agree that there
12 was nothing improper on the part of the OTP to take six or seven months,
13 in effect, to review the material before coming to the decision as to
14 whether or not to exercise the primacy of the Tribunal. Do you agree with
16 A. I would, sir, yes.
17 Q. And you agree also that it was agreed during a meeting which you
18 attended that the parties saw nothing beneficial to rush any of the
19 investigations. Do you remember me reading this passage to you?
20 A. Yes, sir, I do.
21 Q. Is that also correct that at the time of the deferral, that is, in
22 September of 2002, the time when the Prosecutor requested the deferral of
23 the cases, none of the alleged perpetrators had been identified by that
24 time. Is that correct?
25 A. I'm not able to answer that. I think I mentioned, in my earlier
1 testimony, that my responsibilities towards this investigation ceased when
2 the exhumation completed and the material was delivered to the Forensic
3 Institute in the Netherlands.
4 Q. I'll ask you then, Mr. Tucker, if you may, to go back to the first
6 MR. SAXON: Your Honours.
7 JUDGE PARKER: Mr. Saxon.
8 MR. SAXON: Once again, it's not clear to the Prosecution what the
9 relevance is of whether, by September of 2002, the Office of the
10 Prosecutor may have identified alleged perpetrators in this case or not.
11 Again, the -- what we're litigating in it case are the duties and acts or
12 omissions of former Minister Boskoski.
13 MR. METTRAUX: Your Honour, I can address the concern if it is a
14 concern of my colleague. I didn't intend to suggest that it was solely
15 the Office of the Prosecutor had not yet identified any of the alleged
16 perpetrator, but neither the local authorities know the Prosecutor had
17 done so by the time. And within two or three question, I believe
18 Mr. Saxon will understand the relevance of the line of questioning.
19 JUDGE PARKER: Please proceed.
20 MR. METTRAUX: Thank you, Your Honour.
21 Q. Mr. Tucker, could you turn to tab 26 of your binder, please. It
22 is Rule 65 ter 1D638.
23 A. Yes, sir.
24 Q. This is, again, the transcript of the deferral hearing,
25 Mr. Tucker, and I will ask to you go to page 34 of that document.
1 A. Yes, sir.
2 Q. And if you look at the first sentence and second sentence of
3 that -- on that page, those are the comments and submissions made by
4 Mr. Dzikov, the state prosecutor, who appeared on behalf of the Macedonian
6 Mr. Dzikov says the following: "And I would like to inform you on
7 something else regarding the other two cases, that they were mass graves
8 in the village of Neprosteno and the village of Ljuboten. It is the
9 unknown perpetrators, unidentified perpetrators. We have not identified
10 the perpetrators.
11 So you would agree at this stage at least the Macedonian
12 authorities had not yet identified any of the perpetrators; is that
14 A. That's correct, sir.
15 MR. SAXON: Your Honour.
16 JUDGE PARKER: Yes, Mr. Saxon.
17 MR. SAXON: In a prior discussion between the Prosecution and the
18 Defence, Your Honour Judge Parker mentioned that we're not trying the
19 Macedonian government here in this case or the Macedonian judiciary. So,
20 again, the Prosecution doesn't see what the relevance is to this matter as
21 to whether the public prosecutor or the judiciary had identified the
22 perpetrators in the acts or events related to Ljuboten.
23 JUDGE PARKER: Mr. Mettraux.
24 MR. METTRAUX: Well, Your Honour, I think I should be permitted to
25 ask the next few question, or I can respond to Mr. Saxon if the witness is
1 excused, but I think the matter will become quite clear within the next
2 two questions.
3 JUDGE PARKER: Please proceed, Mr. Mettraux.
4 MR. METTRAUX: Thank you very much, Your Honour.
5 Q. Mr. Tucker, would you agree that the competent authorities in
6 Macedonia at the time, which would have been charged with the
7 prosecution -- the investigation and the prosecution of the alleged
8 perpetrators at the time would not have been able to do so, in view of the
9 fact that they had not yet been identified? Would you agree with that?
10 A. I would, sir, based on Mr. Dzikov's comments.
11 Q. And that would be true also of any authorities which would have
12 the competence to impose disciplinary measures on any alleged
13 perpetrators; is that correct?
14 A. That's correct, sir.
15 Q. Thank you. Mr. Tucker, I would like to ask you, once again, to
16 turn to tab 12 of your binder, please.
17 A. Yes, sir.
18 Q. This would be Rule 65 ter 1D669.
19 Mr. Tucker, this is, again, the same table which lists the RFAs,
20 which were sent by the Office of the Prosecution to the government of the
21 Republic of Macedonia during the period August of 2001 to January of 2007,
22 and we have already, I believe, drawn your attention to the first such RFA
23 of the 30th of January of 2002. Can you recall that?
24 A. Yes, sir, I can.
25 Q. Is that correct that the second RFA on the list is one of the 22nd
1 ever May of 2002? Is that correct?
2 A. That's correct, sir.
3 Q. Than would be after the 8th of May when Madam Del Ponte decided to
4 exercise the primacy of the Tribunal; is that correct?
5 A. That's correct, yes, sir.
6 Q. And I suppose, again, it is safe to say that your office acted
7 with due diligence in this investigation at all times and in good faith.
8 That's correct, isn't it?
9 A. That's correct, sir.
10 Q. And you indicated that during the period -- or in answer to my
11 questions in any case, we have established that, during this period of 15
12 of August of 2001 up to May of 2002, your office had received or collected
13 some information about the events in Ljuboten, including an OSCE report
14 and material from the Ministry of Interior, that you had interviewed two
15 potential witnesses, that you had conducted a number of meetings with
16 Macedonian authorities and other international organisation, and that had
17 you provided assistance with the exhumation and the autopsy. Is that a
18 fair summary of what had been done by that time?
19 A. That is, sir, yes.
20 Q. And I would like to know whether by that time, and I mean 8th of
21 May of 2002, you had consulted the medical records from the Skopje City
22 Hospital of the person who had been detained at Ljuboten. Do you know
24 A. I don't know that, no, sir.
25 Q. Are you aware -- do you know whether the Office of the Prosecutor
1 by the 8th of May of 2002 had asked to have access to the medical records
2 of these persons?
3 A. I don't recall that, no, sir.
4 Q. To your knowledge, did your office, during that period, ask the
5 forensic or medical authorities to obtain the original autopsy report of
6 Mr. Qaili? Are you aware of that?
7 A. Yes, sir, I am aware of that.
8 Q. And, perhaps, concerning the issues of the medical records, I will
9 ask you, once again, to go to tab 12 of your binder, and if you can go to
10 the very last page, Mr. Tucker.
11 I apologise, the very last page of that table, which would be
13 A. Yes, sir.
14 Q. And if I can ask you to look at the very last entry in this
15 document, would you agree that a request for assistance to enter and
16 review the archives of the Skopje Hospital was made on the 29 of January
17 of 2007?
18 A. I think I'm looking at the wrong sheet. Tell me which page that
19 is again.
20 Q. It would be 1D00-5942.
21 A. Oh, sorry. I beg your pardon. Yes, I confirm that, sir.
22 Q. Thank you. And up to May of 2002, do you know whether the Office
23 of the Prosecutor had made a request or had sought to obtain the court
24 files from the courts in relation to the events of Ljuboten? Are you
25 aware of that?
1 A. I am, sir, but I'm not sure of the time-line involved with that.
2 Q. Well, perhaps, we can look at tab 54 of your second binder.
3 That's 1D75.
4 This is, again, the letter of Mr. Dzikov to Madam Del Ponte, and
5 it is dated the 14th of August of 2002. And I will ask you to go to the
6 last page of that document, please.
7 A. Yes, sir.
8 Q. And if you could it last sentence in the first paragraph in that
9 document, I will read it out to you. It says: "With regard..." --
10 THE INTERPRETER: Please, when counsel reads, could they slow
11 down. Thank you.
12 MR. METTRAUX:
13 Q. The second and last sentence of the first paragraph, Mr. Tucker,
14 reads as follows: "With regards to the relevant court records, you should
15 address the court, which was most conscientiously cooperates until now,
16 having in mind the position of the court in the Republic of Macedonia."
17 Can you see that?
18 A. Yes, sir, I can.
19 Q. And based on this, you would agree that, at least up to the 14th
20 of August 2002, the Office of the Prosecutor had not yet addressed in a
21 formal request to obtain those records from the court itself which was in
22 possession of that material. Is that correct?
23 A. That would appear to be so, yes, sir.
24 Q. And during that period --
25 MR. SAXON: Your Honour.
1 JUDGE PARKER: Yes, Mr. Saxon.
2 MR. SAXON: I'm sorry for the interruption again, but, again, it
3 is not clear to the Prosecution what the relevance is regarding what the
4 Office of the Prosecutor did not do in terms of its own investigative work
5 in this case by a particular date. How is that relevant to the issues at
6 stake in this case?
7 JUDGE PARKER: Mr. Mettraux --
8 MR. SAXON: I --
9 JUDGE PARKER: I'm sorry, Mr. Saxon. I thought had you made your
11 MR. SAXON: You have heard my point before. I don't need to
12 repeat it.
13 MR. METTRAUX: Your Honour, I think the answer is relatively
14 simply. Each and every question which I asked of this witness, in
15 relation to what the Office of the Prosecutor did or did not to do, were
16 each and every one of them questions which were asked of Prosecution
17 witness as to what they did or did not do in the context of their own
18 investigation, as Mr. Tucker has indicated.
19 JUDGE PARKER: Are we here conducting a comparison test between
20 different prosecuting agencies or judicial agencies?
21 MR. METTRAUX: The point, You Honour, we believe, is slightly
22 different. We believe that the Prosecution investigation in this case
23 was, aside perhaps from the non-transmission of document, but conducted in
24 good faith, we have indicated, properly, as Mr. Tucker indicated. And we
25 believe that the activities of the Prosecution during that period offer at
1 least an indication of what a competent functioning investigative body can
2 or cannot do.
3 The suggestion have been made to several witnesses in this case
4 about particular things which they hadn't done and which we understand
5 will be suggested to be indicative of the failure of the investigative
6 organ. What we wish to establish through this witness is certainly not
7 that the Prosecution didn't do their job in this particular investigation,
8 but that the things which have been suggested to other witnesses as
9 amounting to failures on their part and grave failures on their part are,
10 in fact, things which would or might have been done in due course, as was
11 the case with the Prosecution's own investigation.
12 We believe that at the end of the case the Prosecution will have
13 to ask you to make a determination in relation to the third element of
14 command responsibility, that the actions taken by the authorities amounted
15 to a gross negligence akin to criminal acquiescence and will base its
16 base submissions, in part, on a number of matters which the Prosecution
17 suggests are grave failures by the local authority.
18 What we wish to establish here is certainly not an attack on
19 either Mr. Tucker or certainly not on the Prosecution either, but just to
20 show that another organ, which investigated during the same period with
21 perhaps even better means and better access in some respect, conducted
22 its investigation in very similar manner.
23 JUDGE PARKER: Mr. Saxon.
24 MR. SAXON: Your Honour, with all due respect to my learned
25 colleague, the Prosecution believes that what the Defence is attempting to
1 do now is, again, shift a burden from the accused in this case to the
2 Office of the Prosecutor. There is no issue in this case regarding what
3 the -- what investigative activities the Office of the Prosecutor decided
4 to undertake, what requests for assistance it may have made or not have
5 made during the years between 2001 and 2007.
6 What is at stake in this case is what could the Macedonian
7 authorities -- excuse me, what could Minister Boskoski have done between
8 August 2001 and May 2002 to clarify the events in Ljuboten. And if I may
9 say so, to muddy the waters, muddy the record of this case with questions
10 about when the Office of the Prosecutor may have decided to request
11 certain materials or not, I feel, will not at all help the Chamber
12 determine the matters that it needs to resolve in this case.
13 JUDGE PARKER: Thank you, Mr. Saxon.
14 MR. SAXON: Can I make one more point, please.
15 JUDGE PARKER: Yes.
16 MR. SAXON: The suggestion by my learned colleague that the
17 Prosecution may have had better access than the authorities of Macedonia,
18 well, certainly, that is a factual issue; but, obviously, the Office of
19 the Prosecutor was working thousands of miles away, trying to do
20 investigations via letter by these requests for assistance, and I just
21 don't feel that is a realistic suggestion by my colleague.
22 Thank you.
23 JUDGE PARKER: Thank you.
24 [Trial Chamber confers]
25 JUDGE PARKER: We uphold the objection of Mr. Saxon. In the
1 Chamber's view, this is going beyond the realms that can be fairly
2 explored of the possibility we identified earlier.
3 MR. METTRAUX: Your Honour, obviously, we will not try to go
4 through the decision of the Trial Chamber. For the record, we will
5 indicate, however, that this is our understanding, that Mr. Saxon is not
6 taking issue with the fact that any of the alleged failures which have
7 been put to various Defence -- Prosecution witnesses up to that point were
8 measures that had been taken by the Prosecution authorities during the
9 same time-frame.
10 JUDGE PARKER: The Chamber would intervene, Mr. Mettraux, to
11 indicate its position which is quite different. Whether it is or is not,
12 are factors that are not going to assist the Chamber in the assessment of
13 the conduct of your client.
14 MR. METTRAUX:
15 Q. Mr. Tucker, I'd like to turn to the observations that you made
16 during the exhumation and autopsy procedure in Ljuboten.
17 You've indicated, I think, that this procedure was conducted under
18 the jurisdiction of Skopje II Basic Court; is that correct?
19 A. That's correct, sir, yes.
20 Q. And you will recall that the body of Mr. Qaili was referred to as
21 ID number 2. Do you recall that?
22 A. I would need to look at my record, if I may, sir.
23 Q. By all means. This would be under tab number 1 of the binder.
24 MR. METTRAUX: It is Exhibit P443, for the record.
25 Q. And, Mr. Tucker, if I can ask you to turn to the fourth page of
1 that document, and if you look at the subheading which refers to
2 exhumation and examination of Rami Jusufi: Body, ID/1 and Atulla Qaili,
3 ID/2. Can you see that?
4 A. Yes, sir, I can.
5 Q. And you will agree that the body of Mr. Qaili was referred to as
6 ID/2; is that correct?
7 A. Thank you. Yes, sir.
8 Q. And I would like to ask you a few questions. Is that correct that
9 during the exhumation, an autopsy proceeding, you kept track of the events
10 occurring during that process by keeping what you call monitor record
11 sheet? Is that correct?
12 A. That's correct sir yes.
13 Q. And if I can ask you to turn to what is tab 69 of your second
14 binder, it is it Rule 65 ter 1D616.
15 A. Yes, sir.
16 Q. And if I can ask you to turn perhaps to the first fifth page of
17 that document. Is that correct that it was your practice to refer to the
18 body numbers to call it that, in the column, reference numbers? Is that
20 A. That's correct, sir, yes.
21 Q. So this particular page and the next page, if you can turn, refer
22 to the body of Mr. Qaili; is that correct?
23 A. Yes, sir.
24 Q. And I would like to ask you about an annotation which you made at
25 the very bottom of this page at page at 1416 hours, where you refer to a
1 reference bullet "having been recovered," and there's an annotation bullet
2 shown "not required to photo."
3 Mr. Tucker, could you indicate where this particular bullet had
4 been recovered, if you can recall?
5 A. I can't recall, no, sir.
6 Q. Can you recall if the bullet had been found on or close to the
7 body of Mr. Qaili?
8 A. I'll just read some of the earlier entries, if you'll allow me.
9 No, sir, I can't.
10 Q. And can you recall at this point, Mr. Tucker - I know it has been
11 quite a few years now - can you recall what sort of bullet, this
12 particular bullet that had been recover was, or is it too far gone now
13 from your memory?
14 A. It is too far for my memory, but I wouldn't be able to describe a
15 bullet, other than the fact that it was either a bullet or a fragment.
16 Q. Thank you.
17 MR. METTRAUX: Your Honour, would that be a convenient time?
18 JUDGE PARKER: We will resume at 11.00.
19 --- Recess taken at 10.28 a.m.
20 --- On resuming at 11.01 a.m.
21 JUDGE PARKER: Mr. Mettraux.
22 MR. METTRAUX: Thank you, Your Honour. Perhaps, before we start,
23 if we could tender the last document, which was shown to Mr. Tucker. This
24 would be Rule 65 ter 1D616 with an ERN 1D00-5536.
25 JUDGE PARKER: It will be received.
1 THE REGISTRAR: As Exhibit 1D207, Your Honours.
2 MR. METTRAUX:
3 Q. Mr. Tucker, while we are on the topics of Mr. Qaili, is that
4 correct that the identification of Mr. Qaili, unlike what was done with
5 other deceased, was done not through a DNA testing but by a comparison of
6 the papillary lines? Is that correct?
7 A. That's correct, sir, fingerprints.
8 Q. And are you aware of the reason or reasons why a DNA test was not
9 conducted in the case of Mr. Qaili?
10 A. If my recollection serves me correctly, he had been the subject of
11 a previous autopsy.
12 Q. And do you know why DNA testing was not conducted on a number of
13 other deceased: Mr. Mehmet Memeti, Dalip Murati, and Erxhan Aliu. Do
14 you know why that wasn't done in relation to these people?
15 A. I don't recall, no, sir.
16 Q. Is that--
17 A. Sorry to interrupt. May I refer to the bullets that we discussed
19 Q. Certainly.
20 THE WITNESS: Your Honour, during the break, I had time to reflect
21 on the questions asked by learned counsel, and I had a look at the notes
22 when I came back. And I believe this -- this particular bullet was one
23 that was found by the EoD team the day prior to the commencement of this
24 exhumation process.
25 MR. METTRAUX:
1 Q. And, Mr. Tucker, could you indicate what the EoD team is, please?
2 A. It is the Explosive Ordinance Disposal unit, a military unit
3 attached to NATO, sir.
4 Q. And can you recall if, indeed, this particular bullet had been
5 found next or on the body of Mr. Qaili? Can you recall that?
6 A. My recollection is that it was found the surface area of the
7 general area of the grave site, and it wasn't subject of the exhumation
9 Q. Thank you. And can you confirm that the papillary line were in
10 relation to Mr. Qaili, again, were made by the crime technicians of the
11 MOI? Can you recall that?
12 A. Yes, I can. Sir.
13 Q. And the result of this comparison between an ID card, I believe,
14 and the papillary line made of Mr. Qaili was shared with you by the crime
15 technician of the MOI. Is that correct?
16 A. That's correct, sir, yes.
17 MR. METTRAUX: Your Honour, this would be, among other things, in
18 Exhibit 1D69.
19 Q. And I'd like now to turn to the exhumation and autopsy of another
20 person. Do you recall that Mr. Saxon asked you, during the
21 examination-in-chief, about the purpose of tests carried out on the
22 clothing of victims. Do you recall that?
23 A. I do, sir, yes.
24 Q. And I believe you gave essentially three reasons which you could
25 identify for these test: One was to identify the victims; or to show
1 certain sign of damage that could help identify the type or the nature of
2 the injury; and you also indicated that it would or it might assist in
3 locating any foreign material that could be of forensic or evidential
4 value. Is that correct?
5 A. That's correct, sir.
6 Q. And I would like now to turn to the exhumation and autopsy of the
7 deceased, Mr. Rami Jusufi. Do you recall that he is being referred to as
8 ID/1 in your statement? Can you recall that?
9 A. I do, sir.
10 Q. Do you recall also that when you exhumed, not you personally, but
11 when the body of Mr. Jusufi was exhumed and later identified, you found a
12 belt that had been tied around his chest? Do you recall that?
13 A. Not specifically, sir. Perhaps, I could refer to the --
14 Q. Certainly. I will ask assist you there. If you turn to tab 69,
15 letter B of your binder. This is Rule 65 ter 1D617.
16 A. 69 B, sir?
17 Q. That's correct. 69 A, I apologise.
18 A. Yes.
19 Q. This would be 1D673, Rule 65 ter.
20 And I'll ask you to turn -- well, perhaps, again, I will ask to
21 you look at the first page and the so-called reference numbers column.
22 Can you see that?
23 A. Yes, sir.
24 Q. And you agree that on the first page it refers to the body ID/1?
25 A. Yes.
1 Q. And if you continue to the second page, that is still body ID/1;
2 is that correct?
3 A. Yes, sir.
4 Q. And on the third and fourth page, it continues to refer to that
5 particular body; is that correct?
6 A. Yes, sir.
7 Q. And I'd like to draw your attention to the last sentence on page 3
8 of this document, Mr. Tucker, and I will read out to you the annotations
9 which were made by you, in particular at 11.18 hours.
10 You recorded the following: "Damage to shirt noted in chest area
11 and rib-cage examined; damage to skin; sternum and ribs for damage.
12 Professor Cakar explained belt around mid-sections," I believe, "entire
13 belt for removal" or "untied belt for removal; belt probably placed around
14 body at time of burial; not necessary to retain by ICTY."
15 Do you recall, sir, now finding a belt under the shirt of
16 Mr. Jusufi at the time?
17 A. Yes, sir.
18 Q. And at the time you took the view that it had been probably placed
19 around the body at the time of burial. Can you recall that?
20 A. Yes, sir.
21 Q. And did you have any indication at that time that this had been
22 the case; and by that, I mean did you interview any of the family members
23 or any of the relatives in relation to this matter?
24 A. No, sir. From my recollection, this was -- this was a probability
25 expressed by the examining pathologist.
1 Q. And you disregarded that item; is that correct?
2 A. It would appear so from the note, yes, sir.
3 Q. Is it correct that, in March of 2002, you had been given a number
4 of photographs by Mr. Henry Bolton of the OSCE, and I'm referring, in
5 particular, to the pictures or photographs of the deceased in Ljuboten.
6 Can you recall that?
7 A. Yes, sir, I can.
8 Q. And one of those pictures, if can you recall at this stage, was of
9 Mr. Muharem Ramadani. Do you recall that?
10 A. I don't remember the names of the photograph, sir.
11 Q. I'd like to show you a picture which will appear on the screen,
12 Mr. Tucker. It is 02117-0531. This is under tab -- should be under tab
13 71 in a black and white version, and it is 65 ter 1D132. I apologise.
14 A. Sorry. The tab number?
15 Q. 71, Mr. Tucker. The copy in your binder is black and white. The
16 quality will be better on your screen. In fact, it is not much better.
17 But can you see on this picture or in the picture perhaps that
18 have you in your binder, that there appears to be a belt tied around the
19 chest of Mr. Ramadani below his shirt? Can you see that?
20 A. Can I see the belt around his waist, sir.
21 Q. Well, perhaps, if can you see, there is the chest area in which
22 there seems to be a dark sort of rectangular marking; and underneath,
23 there would be a black line. Can you see that?
24 A. I can see that, yes, sir.
25 Q. And is that one of the picture that was, in fact, given to you at
1 the time by Mr. Bolton?
2 A. I believe it to be, yes, sir.
3 Q. And had you noted at the time that Mr. Ramadani, just like
4 Mr. Jusufi, had been wearing what would appear to be a belt under his
5 clothing in the region of the chest?
6 A. I still wouldn't identify that personally as being a belt, sir.
7 Q. And did you make any inquiry during your investigation or as part
8 of the exhumation or autopsy to figure out what this particular item was,
9 if, indeed, it were still on the body of Mr. Ramadani at that time?
10 A. No, sir. The photographs were -- I folded them into in small
11 albums to assist the pathologist before and during the autopsy.
12 Q. And did you ever obtain information as to what the purpose of a
13 belt under the clothing of a particular individual would have been?
14 A. No, sir. That wasn't within my scope of work at that time.
15 Q. Going back for a moment, Mr. Tucker, to the exhumation and autopsy
16 of Mr. Rami Jusufi, I'll ask you, again, to go back to tab 69A in your
17 binder. This is again 1D673, and I'll ask to you turn to page 6 of this
18 particular item.
19 Can you recall that during the autopsy of Mr. Rami Jusufi, and in
20 particular in the process of studying or examining the clothing of
21 Mr. Jusufi, the professor in charge, Professor Cakar, remarked that
22 although the T-shirt worn by Mr. Jusufi had two holes in it, there
23 appeared to be no traces of blood on the T-shirt. Do you recall that?
24 A. I don't recall the specifics. Presumably, it is in the notes here
25 somewhere, sir.
1 Q. Yes. Mr. Tucker, if can you go to page 6 of that page please, and
2 focus on the annotations which you made at 1314 to 1316.
3 I will read them out to you. They say: "Comment from Professor
4 Cakar that there appeared no sign of blood on T-shirt of body, apart --
5 apparent two times hole in the T-shirt."
6 Can you see that?
7 A. Yes, sir, I can.
8 Q. And do you recall Mr. Cakar making that comment to you at the
10 A. Yes, sir.
11 MR. METTRAUX: Your Honour, the Defence would seek to tender this
13 JUDGE PARKER: It will be received.
14 THE REGISTRAR: As Exhibit 1D208, Your Honours.
15 MR. METTRAUX:
16 Q. Mr. Tucker, you have explained in great detail, in your statement,
17 the steps and measures which you took to guarantee the integrity of the
18 process of exhumation and autopsy, and I don't wish to go too much into
19 the detail. You described it to great length in your statement.
20 Would you confirm that the importance of the steps which you took
21 in that regard was precisely to guarantee the so-called chain of custody
22 of the bodies and any items that could be found in or around the bodies
23 with a view of ensuring their eventual relevance in the context of a
24 proceedings? Is that correct?
25 A. That's correct, sir.
1 Q. And those measures or steps which you took were taken in relation
2 to each and every body that was exhumed and then autopsied; is that
4 A. That's correct, sir.
5 Q. And, in particular, that was done in the case of Mr. Xhelal
6 Bajrami, which is referred to as body ID/5; is that correct?
7 A. That's correct, sir.
8 Q. And would you confirm that at the time of the autopsy of
9 Mr. Xhelal Bajrami, 26 round of live ammunitions were found in the pockets
10 of the clothing of Mr. Bajrami. Is that correct?
11 A. That's correct, sir.
12 Q. I would also need your assistance, Mr. Tucker, in relation to
13 another exhumation and autopsy, and that would be that of Mr. Bajram
14 Jashari, who is referred to in your statement as ID/3. And I'd ask you to
15 turn to what is tab 69 D in your binder, please. That would be Rule 65
16 ter 1D618.
17 A. Yes, sir.
18 Q. And, again, I will simply ask you to confirm that on the reference
19 numbers, on the first page, it refers in the first instances to both ID/3
20 and ID/4 and to ID/3; is that correct?
21 A. That's correct, sir.
22 Q. The second page continues to talk about or to refer to the
23 exhumation and autopsy of ID/3; is that correct?
24 A. That's correct, sir.
25 Q. And the fourth page still refers to --
1 THE INTERPRETER: The interpreters would kindly like to ask to the
2 counsel and witness to take a break between questions an answers.
3 MR. METTRAUX: Thank you.
4 Q. And, Mr. Tucker, if you look at page 4 of the documents, you will
5 agree that this page, again, refers to the body of Mr. Bajram Jashari,
6 ID/3; is that correct?
7 A. Yes, sir, that's correct.
8 Q. And if I can draw your attention to the annotations which you made
9 at 1126, I will read it out to you: Dr. P. stated one hole missed on
10 outer part of jacket, left side. It corresponds with one under."
11 Do you recall that when the examination of the clothing of
12 Mr. Bajram Jashari was made, the doctor, or the professor in charge of
13 that, recorded and recalled that the hole that was apparent on the body of
14 Mr. Jashari was missing from the clothes that he was wearing at the time
15 of the autopsy. Do you recall that?
16 A. I recall that, yes, sir.
17 Q. And if I can ask you to turn to the next page, Mr. Tucker, and to
18 look at the annotation which you made at 1140. And, again, can you
19 confirm that this, again, refers to body ID/3?
20 A. Yes, sir, it does.
21 Q. You've made an entry or an annotation in the following terms: "In
22 a shirt examined by Dr. P, comparison made with damage to inside of jacket
23 right side within shirt damage? Measurements of damage, ten in shirt
24 taken, plus given to Dr. EB, additional damage to lower centre of the
25 shirt measured."
1 Do you recall that at the time there were discussion and
2 annotations made to the effect that there appeared to be some
3 discrepancies between the holes or marks identified on the clothing of
4 Mr. Jashari and the observations made on his body? Do you recall that?
5 A. I do, sir, yes.
6 MR. METTRAUX: Your Honour, we would seek to tender this.
7 JUDGE PARKER: It will be received.
8 THE REGISTRAR: As Exhibit 1D209, Your Honours.
9 MR. METTRAUX:
10 Q. Mr. Tucker, I'll ask to you go backwards into the binder to tab
11 69C, please. This would be 65 ter 1D686, and if I can ask you to turn to
12 the fifth page of that document.
13 At 1104, you make an annotation to the effect that there was the
14 arrival of local police to site: "Spoke with Kenan."
15 Can you see that?
16 A. Yes, sir, I can.
17 Q. And can you recall now, Mr. Tucker, who that local police was that
18 is correct you were referring to?
19 A. I believe this was the -- the combined police patrols which, if I
20 remember correctly, comprised of two Macedonian, Albanian police officers
21 and one Macedonian police officer, I believe.
22 Q. And the person whom they spoke to, according to your note, was a
23 person called "Kenan." Would that be the village leader, Mr. Kenan
25 A. Yes, sir, it would.
1 MR. METTRAUX: Your Honour, we would seek to tender this document.
2 JUDGE PARKER: It will be received.
3 THE REGISTRAR: As Exhibit 1D210 Your Honours.
4 MR. METTRAUX:
5 Q. Mr. Tucker, I'll take you away from the exhumation process for a
6 moment, and would like to ask you about a number of other meetings which
7 you attended.
8 You've indicated that, on a number of occasions, you met with the
9 Macedonian authorities or Macedonian representative. Do you recall
10 meeting with the president of the Republic of Macedonia, Mr. Boris
11 Trajkovski, during some of those meetings?
12 A. Yes, sir, I do.
13 Q. And, during those meetings, you had the opportunity to realise the
14 involvement and the authority of the president in to security matters; is
15 that correct?
16 A. That's correct.
17 Q. And, perhaps, if we limit this question even further, you had the
18 opportunity during those meetings to see that the president of the
19 Republic of Macedonia would sometimes give orders, direct orders that
20 pertained to the security issues in the country at that time. Is that
22 A. That's correct, sir.
23 Q. And some of those orders or -- some of those orders which you
24 personally witnessed being given by the president in relation to security
25 matters were given directly to the Ministry of Interior, and even more
1 specifically to the Minister, Mr. Boskoski; is that correct?
2 A. I believe that's correct, yes, sir.
3 Q. And from those meetings which you had with the president, you also
4 know that at the time, when Mr. Boskoski would receive such an order from
5 the president, he would feel bound to obey such orders. Is that correct?
6 A. I would imagine he would, yes, sir.
7 Q. And if I can turn your attention to another one of your
8 investigator's note, Mr. Tucker, that would be at tab 74 of your binder.
9 This is Rule 65 ter 369.
10 Mr. Tucker, we haven't seen this particular document yet, I
11 believe, but you remember you indicated to Mr. Saxon in your evidence in
12 chief that you attended a number of meetings that pertain more
13 specifically to the Neprosteno exhumation. Do you recall that?
14 A. I do, sir, yes.
15 Q. And do you recall this particular note to be the record of one of
16 these particular meetings? Is that correct?
17 A. Yes, sir, that's correct.
18 Q. And perhaps, for the transcript, I will go through briefly through
19 the document for you. The purpose of this document or the purpose of this
20 meeting was a meeting arranged by the Macedonian authorities in connection
21 with the exhumation project proposed for confidential site near the town
22 of Tetovo. It took place on Saturday, the 10th of November, of 2001 at
23 1300 hours in the assembly hall of the parliamentary building. And
24 present during that meetings were Mr. Trajkovski, President of the
25 Republic of Macedonia; Mr. Boskoski, as Minister of the Interior; Goran
1 Mitevski, Director of Public Security; Mr. Dzikov, Public Prosecutor;
2 Professor Duma, Director of Forensic Pathological for the Republic of
3 Macedonia; His Excellency Mr. Norberg, EUMM Ambassador to the Republic of
4 Macedonia; Mr. LeRoy, special envoy to the EU; Brigadier-General Keerle of
5 NATO; Mr. van der Stoel, special envoy of the OSCE; Mr. Klaus Voellers,
6 special political representative for NATO; Dr. Peer Schwan, colonel and
7 military assistant for NATO; Mr. Craig Jennes, head of OSCE in Macedonia;
8 yourself, and other leading figures for NATO, OSCE, and EU. Is that
10 A. That's correct, sir.
11 Q. And the record which you made of that meeting is a record of
12 discussions which took place between these particular people in relation
13 to the foreseen or proposed investigation in the Neprosteno area; is that
15 A. Yes, sir, that's correct.
16 Q. And if I can turn your attention to the second page of that
17 document -- sorry, the fourth page of that document, I'll ask to you focus
18 on the second paragraph on that page. I would but ask you to confirm that
19 the "he" in fact referred to President Trajkovski, if you can look at the
20 previous page.
21 A. Yes, sir.
22 Q. And the record of the meeting records the following that:
23 "Mr. Trajkovski," the president of the Republic of Macedonia, "ordered,"
24 this is highlighted, "ordered Mr. Boskoski to increase police patrols, to
25 issue them armoured vehicles and body armour immediately, and for them,"
1 the police, "to commence operations in the area tomorrow." That Would be
2 Sunday, the 11th of November of 2001.
3 Can you see that?
4 A. Yes, sir, I can.
5 Q. And then you record a particular statement made by the president,
6 Mr. Trajkovski, addressed to Mr. Boskoski in those terms: Mr. Minister,
7 you will issue the police with all their powers now, and stated,'I'm the
8 president of this country and that is that.'"
9 Can you see that?
10 A. Yes, sir, I can.
11 MR. METTRAUX: Your Honour, we'd seek to tender this document.
12 JUDGE PARKER: It will be received.
13 THE REGISTRAR: As Exhibit 1D211, Your Honours.
14 MR. METTRAUX:
15 Q. Mr. Tucker, you will recall a number of follow-up meetings to this
16 particular meeting with the president Trajkovski and Mr. Boskoski; is that
18 A. Yes, sir, that's correct.
19 Q. And, in particular, I would like you to turn to the next tab in
20 your binder. That would be tab number 75. It is it Rule 65 ter 1D639.
21 And as you will see from the record, Mr. Tucker, this is one of your
22 investigator's notes, and it is -- it concerns a meeting, again pertaining
23 to the Neprosteno exhumation process of the same day, but later in the
24 day, on the 10th of November of 2001. Is that correct?
25 A. That's correct, sir, yes.
1 Q. And present at that meeting were Mr. Boskoski, Minister of the
2 Interior; Mr. Mitevski, Director of ever public security; Mr. Dzikov as
3 public prosecutor; Professor Duma, the Director of the Forensic
4 Pathological for the Republic of Macedonia; His Excellency Mr. Norberg,
5 the EU Ambassador to Macedonia; Mr. LeRoy, special envoy to the EU; James
6 Pardew, the US special envoy; Brigadier-General Keerle of NATO; van der
7 Stoel, special envoy for the OSCE; Mr. Klaus Voellers, senior political
8 representative for NATO; Mr. Craig Jennes, head of the OSCE in Macedonia;
9 Dr. Peer Schwan, military assistance to NATO; Mr. Szydlik, operation
10 officer of the ICTY in Macedonia; yourself; and other unidentified leading
11 figures from NATO, EU, and OSCE. Is that correct?
12 A. Yes, sir, that's correct.
13 Q. And if you can look at the first page, Mr. Tucker, the first
14 paragraph, unhighlighted paragraph, it says that the meeting was arranged
15 at the incident insistence of the president; is that correct?
16 A. That's correct, sir.
17 Q. And if I can ask you to turn to the next page, and I ask you to
18 focus on the fifth paragraph from the top. It starts with the word:
19 "Mr. Boskoski."
20 Can you see that?
21 A. I'm sorry. On page 2?
22 Q. Yes, please, page 2.
23 A. Yes, I have it.
24 Q. There's a paragraph which starts with the words: "Mr. Boskoski
25 referred to the meeting with the president and made several statements
1 about the legality of the Macedonian government to conduct its affairs as
2 it saw fit. He stated that he did not believe that anyone could guarantee
3 100 per cent security."
4 Can you see that?
5 A. Yes, sir, I can.
6 Q. And then if you can leap frog to the next paragraph, which starts
7 with the word, "Mr. LeRoy." Can you see that?
8 A. I can, sir, yes.
9 Q. Mr. LeRoy is recorded as saying this: "Mr. LeRoy agreed that 100
10 per cent security could not be guaranteed. He also agreed that the
11 operation should be begin as soon as possible. He also agreed that the
12 suffering of the relative of the victims should be considered and that the
13 president had the authority to proceed."
14 Can you see that?
15 A. Yes, sir, I can.
16 Q. And he said: "However, he did not agree that the operation should
17 not be delayed for a short while to ensure the involvement of the
18 international community as a whole. He felt that the delay for one or two
19 days, a short time, would not make much difference."
20 Can you see that?
21 A. Yes, sir, I can.
22 Q. And if you can now turn to the next page, the third page of this
23 record, you recorded Mr. Boskoski to say this: "Mr. Boskoski said that he
24 agreed with what was said in principle, but he still -- but he stated that
25 he still 'had in mind the instructions of the president. It was not
1 possible for him to decide.'"
2 Can you see that?
3 A. Yes, sir, I can.
4 Q. And Mr. LeRoy is recorded as saying this: "He responded by asking
5 that he, Mr. Boskoski, relay his request to the president immediately. He
6 reiterated if there was delay of 24 hours, he would guarantee full
7 cooperation and support."
8 And then you made an annotation in parenthesis to the effect
9 that: "In the mean time, a government aid had left the room to telephone
10 President Georgievski." It should have been Trajkovski?
11 A. Should have been, yes, sir.
12 Q. And you record the following: "There was some exchanges of view,
13 some contradictory of the situation concerning the overall stability and
14 security of the region. Mr. Mitevski explained that there had already
15 been a delay of one week, and that should have been sufficient time for
16 the international organisations to prepare."
17 And then you made another annotation to the effect that: "The aid
18 returned and spoke to Mr. Boskoski."
19 And then you record Mr. Boskoski as saying the following: "The
20 president has agreed to the meeting of the Crisis Management Centre for
21 tomorrow at 9.00, Sunday, 11 November 2001; and he adds, although he does
22 not believe that it is necessary."
23 Can you see that?
24 A. Yes, sir, I can.
25 MR. METTRAUX: Your Honour, we would seek to tender this document.
1 JUDGE PARKER: It will be received.
2 THE REGISTRAR: As Exhibit 1D212, Your Honours.
3 MR. METTRAUX: Your Honour, the cross-examination is now finished,
4 and I would like to thank Mr. Tucker for his patience and assistance.
5 The only things that would remain, Your Honour, would be the
6 tendering of the a number of documents which have been used with
7 Mr. Tucker during the cross-examination. The only question which I would
8 have would be wether Your Honour would wish that we do so at this stage or
9 whether you would wish for the sake of saving time that we do that at the
10 end of the evidence of this witness.
11 JUDGE PARKER: It may be clearer now, Mr. Mettraux.
12 MR. METTRAUX: In that case, Your Honour, we would seek to tender
13 what is under tab 26 of Your Honour's binder, which is Rule 65 ter 1D638,
14 which is the transcript of the deferral hearing which related, in part, to
15 this case and which has been used with the witness.
16 The Defence would also move to tab 28, 29, 30, 31, 32, 33, and 34
17 admitted. Those, Your Honour, are the investigator's notes of the 27 to
18 the 29 of November of 2001, which were the subject of extensive
19 cross-examination, and they were all prepared by Mr. Tucker.
20 JUDGE PARKER: Mr. Saxon.
21 MR. SAXON: Your Honour, the Prosecution has an objection to the
22 admission of one document. That is the document that is at tab 30.
23 That's Rule 65 ter 1D657.
24 The Prosecution understands this document solely to refer to
25 matters related to the Tetovo regional court and the area under that
1 court's jurisdiction and the Neprosteno exhumation site. And so, in the
2 Prosecution's mind, there is no relevance of this document to the issues
3 of this case.
4 MR. METTRAUX: Your Honour, I think, in response, that Mr. Saxon
5 is correct, only in part. The document was believed to be relevant and
6 when it was used in relation to two discrete issues.
7 The first one, as Mr. Saxon pointed out is correct, was to the
8 effect that it related to the Neprosteno investigation. It was used in
9 the first place to demonstrate which authorities were competent within the
10 Republic of Macedonia to investigate both the cases of Neprosteno and
12 The second issue in relation to which this document was used and
13 the issue to which we believe is relevant is the issue of security or the
14 lack thereof at the time, in particular as pertain to the sort of
15 investigation and exhumation operation which were later the subject of a
16 further set of meetings in Macedonia.
17 So the two issue, in summary, Your Honour, are about the competent
18 authorities to conduct such investigation and the issue of security in
19 Macedonia at that time.
20 [Trial Chamber confers]
21 JUDGE PARKER: It will be received along with the other documents
22 you tendered.
23 MR. METTRAUX: I'm grateful to Your Honour.
24 THE REGISTRAR: Your Honours document under tab 26, 65 ter 1D638,
25 will become Exhibit 1D213. Document under tab 28 has already MFI'd and
1 will become now Exhibit 1D195. Document under tab 29 has already MFI'd
2 and will now become Exhibit 1D196. Document under --
3 JUDGE PARKER: Slow down, please.
4 THE REGISTRAR: Thank you.
5 Document under tab 30, 65 ter 1D657, will become Exhibit 1D214.
6 Tab 31 has already been MFI'd and will now become Exhibit 1D197. Tab 32,
7 65 ter 1D143, will become Exhibit 1D215. Tab 33, 65 ter 1D614, will
8 become Exhibit 1D216. Tab 34, 65 ter 1D615, will become Exhibit 1D217,
9 Your Honours.
10 MR. METTRAUX: Your Honour, the next document would be under tab
11 37 of your binder, and that is the Trial Chamber decisions in relation to
12 the request by the Prosecution for the deferral of five cases, including
13 Ljuboten case, and this is dated the 4th of October of 2002. The document
14 is publicly available, Your Honour. The reason why the Defence is seeking
15 to tender this in these proceedings is that, formally, it is it not part
16 of the record of this trial, since it proceeded the time of the indictment
17 in this case.
18 JUDGE PARKER: It will be received.
19 THE REGISTRAR: As exhibit 1D218, Your Honours.
20 MR. METTRAUX: The next document, Your Honour, which we seek to
21 tender is under tab 38 of the first binder. It is a so-called conclusion
22 of the Supreme Court of the Republic of Macedonia concerning the deferral
23 of the five cases in question to the jurisdiction of the Tribunal,
24 including the case of Ljuboten.
25 JUDGE PARKER: It will be received.
1 THE REGISTRAR: As Exhibit 1D219, Your Honours.
2 MR. METTRAUX: The next two documents, Your Honour, are again
3 investigator's notes prepared by Mr. Tucker in relation to preparation
4 made for the exhumation in Ljuboten. They are at tab 49 and 50
5 respectively of Your Honours' binder, and they record two meetings of the
6 7th of March of 2002.
7 JUDGE PARKER: It will be received.
8 THE REGISTRAR: Document under tab 49 will become Exhibit 1D220,
9 and document under tab 50 will become Exhibit 1D221, Your Honours.
10 MR. METTRAUX: Your Honour, there is -- the next document would be
11 at tab 73 of Your Honour's binder. This is a document that wasn't used
12 directly with this witness; although, his evidence was relevant to the
13 particular point. In light of the response of the witness and in
14 particular in relation -- in view of the fact that he has indicated the
15 time-frame of his involvement in this case, there was no need to tender
16 this document.
17 This document, Your Honour, is the report in effect that was
18 ordered or requested by the Office of the Prosecutor for a ballistic
19 analysis of the ballistic material collected in Ljuboten. We've had a set
20 of questions to Mr. Tucker in relation to this matter. I haven't used the
21 report itself, but this a proposed exhibit by the Prosecution, Rule 65 ter
23 JUDGE PARKER: It will be received.
24 THE REGISTRAR: As Exhibit 1D222, Your Honours.
25 MR. METTRAUX: Your Honour, I believe that would be all.
1 And I'm very grateful to you, Mr. Tucker. Thank you.
2 JUDGE PARKER: Mr. Apostolski.
3 MR. APOSTOLSKI: [Interpretation] Your Honours, I fully support the
4 intervention interrogation of my colleague, Mr. Mettraux, and I will have
5 no additional questions.
6 JUDGE PARKER: The Chamber continues to be appreciative of the
7 cooperation between Defence counsel in the matter of cross-examination,
8 which is important to the time taken with a witness.
9 Thank you, Mr. Apostolski.
10 Mr. Saxon.
11 Re-examination by Mr. Saxon:
12 Q. Mr. Tucker, just to clarify a few points.
13 As a representative of the Office of the Prosecutor, you began
14 working in Macedonia in November 2001.
15 A. Yes, sir, that's correct.
16 Q. And your work was directed not only towards the investigation of
17 the events in Ljuboten but also toward alleged crimes committed by the NLA
18 in other parts of Macedonia.
19 A. Yes, sir, that's correct.
20 Q. And as we saw during the cross-examination, as part of your role,
21 you participated in a number of meetings with representatives of the
22 Macedonian government, starting in November 2001. Is that right?
23 A. That's correct, sir.
24 Q. Now, if I can refer to you, or if I can refer to your position, at
25 that time in Macedonia, as a member of the international community, for
1 lack of a better label, you were not the only member of the international
2 community who was present at those meetings with Macedonian authorities,
3 were you?
4 A. That's correct, sir.
5 Q. Often, those meetings would be attended also by representatives of
6 the OSCE, the EUMM, representatives of NATO. Is that right?
7 A. That's correct, sir, yes.
8 Q. At some of those meetings, were ambassadors from different
9 countries also present, different nations?
10 A. Yes, sir.
11 Q. Mr. Tucker, why did so many different institutions and nations
12 offer assistance to the authorities of Macedonia with respect to these
13 cases of alleged war crimes?
14 A. I think I can simply answer that insofar as both these particular
15 exhumations were considered to be crucial to the continuing stability in
16 what was considered to be an uneasy, peaceful situation in Macedonia at
17 that time.
18 Q. All right. And, Mr. Tucker, was then Minister Boskoski present at
19 some of these meetings during the Autumn of 2001 when you and other
20 members of the international community were present?
21 A. Yes, sir, he was.
22 Q. If we can turn now to what is now Exhibit 1D211. And, Mr. Tucker,
23 this is at tab 74, so it is probably in the second binder that was given
24 to you by my colleagues from the Defence.
25 A. Yes, sir.
1 Q. Do you have that document in front of you, Mr. Tucker?
2 A. I do, sir, yes.
3 Q. This -- these are your investigator's notes from a meeting that
4 occurred at 1300 hours on Saturday, the 10th of November, 2001. Do you
5 see that?
6 A. Yes, sir, I do.
7 Q. In the assembly hall of the parliament building. And present from
8 the government of Macedonia, we see, was President Trajkovski; Minister
9 Boskoski; Goran Mitevski; Stavre Dzikov, the public prosecutor; Professor
10 Duma, the Director of Forensic Pathology for the Republic of Macedonia;
11 and then we see a series of other people. We see His Excellency Mr.
12 Norberg, who was the EU's ambassador to Macedonia; Mr. LeRoy, special
13 envoy of the European Union; Brigadier-General Keerle, from the NATO Amber
14 Fox Mission --
15 MR. SAXON: I see Mr. Mettraux on his feet.
16 JUDGE PARKER: We were waiting for to you pause, Mr. Saxon.
17 Yes, Mr. Mettraux.
18 MR. METTRAUX: I am grateful to you, Mr. Saxon, for pausing.
19 Simply for the record, Your Honour, Mr. Saxon appears to have
20 referred to the President Trajkovski as a member of the government of
21 Macedonia. We believe he wasn't.
22 MR. SAXON: Well, if I stand corrected, thank you.
23 JUDGE PARKER: A nicety of constitutional law, Mr. Saxon.
24 MR. SAXON: That is a forte of Mr. Mettraux, so I am sure he is
1 Q. We see Mr. van der Stoel, special envoy for the OSCE; Mr. Kollers,
2 senior political representative for NATO; Mr. Schwan, another NATO
3 representative; Craig Jennes, the head of OSCE; yourself, Mr. Tucker; and
4 then, in addition, other leading figures from NATO, the European Union,
5 and the OSCE.
6 Do you see that?
7 A. Yes, sir, I do.
8 Q. If we could turn, please, to the third page after that document,
9 and I'd like to direct your attention, Mr. Tucker, to the second full
10 paragraph on page 3, where Mr. LeRoy, the EU representative, states that,
11 in his view, there was no requirement to rush ahead on the following
12 Sunday; and, I believe, if I understand your notes, to rush ahead with the
13 Neprosteno exhumation. Do you see that? Is that right?
14 A. Yes, I see that, and you are correct, sir, yes.
15 Q. And Mr. LeRoy asked that some time be given to provide a more
16 detailed plan, in order for the international observers to be able to
17 properly prepare for the task. Do you see that?
18 A. I do, sir, yes.
19 Q. And then we see a paragraph that says this: "Mr. Boskoski
20 strongly disagreed and gave various reasons for this. His main concern
21 centred around the possibility of interference of the site by those intent
22 on preventing the Macedonian authorities in establishing the truth and
23 finding the remains of those missing."
24 Do you see that?
25 A. I do, sir, yes.
1 Q. And then the next paragraph, we say that there were several heated
2 exchanges taking place between the parties; although, President Trajkovski
3 did not participate in those exchanges so far.
4 And then we see that the Ministry of Interior's Director for
5 Public Security, Mr. Goran Mitevski, commented that, if the authorities
6 were to await political dialogue to run its course, they, Macedonia, would
7 not move at all.
8 Do you see that?
9 A. Yes, sir, I do.
10 Q. I know it's been some years now since this meeting took place, but
11 can you recall, Mr. Tucker, your impression, for lack of a better word, of
12 what Minister Boskoski was pushing or promoting at that time? What was
13 Mr. Boskoski trying to promote?
14 A. Mr. Boskoski wanted to move as quickly as possible to -- to
15 commence the exhumation at Neprosteno. That was the fundamental point.
16 Q. All right.
17 MR. SAXON: Can we turn to the next page, please.
18 Q. And this is page 4 of the English version, and we see where, in
19 the middle of the page, Mr. LeRoy agreed with the idea of an 8.00 p.m.
20 meeting and attempted to go calm the situation. Do you see that?
21 A. I do, sir, yes.
22 Q. And when you say, "he attempted to calm the situation," are you
23 referring to the atmosphere in that meeting or another situation?
24 A. The atmosphere in the meeting, sir. It became extremely heated.
25 Q. The next paragraph, we see: "However, Mr. Boskoski adds some
1 comments concerning the security issues involving Tetovo, and stated that
2 he would send armoured vehicles and suitably protected police into Tetovo
3 to counter the violence, shooting incidents," which in your opinion only
4 added to the obvious annoyance of the president.
5 You remark here on the obvious annoyance of the president; but as
6 far as you can recall, did the president give any countermanding orders to
7 Minister Boskoski, with respect to what Minister Boskoski said he was
8 going to do in Tetovo?
9 A. No, sir, to my recollection, he did not.
10 Q. And then in the next paragraph we see: "President Trajkovski,
11 still agitated, stated to the audience: 'If you are doing this, trying to
12 delay the exhumation deliberately, in order to extend your mandate, it
13 will not work, because if I say to you that your mission is over by the
14 27th of November, then it will be.'"
15 Do you see that?
16 A. Yes, sir, I do.
17 Q. When that meeting ended, Mr. Tucker, what was your impression
18 then, at least related to these issues that were discussed at the meeting,
19 which authorities would prevail, in terms of how these operations would be
20 conducted and when?
21 JUDGE PARKER: Mr. Mettraux.
22 MR. METTRAUX: Your Honour, I don't think it is a fair question to
23 put to the witness to state what is impression were. What we would
24 believe would a more useful question, and question which perhaps the
25 witness could answer is: What, in fact, happened? And he could be
1 referred for that purpose to the meeting later that day.
2 But if he is asked to give his impression, I think it would be
3 more assistance to the Chamber to know what version or what course, in
4 fact, prevailed between the two.
5 MR. SAXON: Well, I can rephrase my question, Your Honour. I was
6 focussing on the statement of President Trajkovski, saying that: "If I
7 say to you that your mission is over by the 27th of November, then it will
8 be." I'll try to ask my question a bit differently.
9 Q. At that moment, Mr. Tucker, did you have any doubts in your mind
10 about the sovereign ability of the state of Macedonia to conduct its
11 affairs as it saw fit?
12 A. I had no doubt at all who was in charge at that meeting .
13 Q. All right.
14 MR. SAXON: Can we turn, please, to what is in tab 75 of the
15 binder in front of you, and this is now Exhibit 1D212.
16 Q. And you'll see, Mr. Tucker, this is, again, some of your
17 investigator's notes. It's notes that you made related to a meeting that
18 took place later the same day at 2030 hours. Do you see that?
19 A. I do, sir, yes.
20 Q. And, again, we see the list of who was present. This time
21 President Trajkovski is not present. We see Ljube Boskoski;
22 Mr. Mitevski; Stavre Dzikov, the public prosecutor; Professor Duma; and
23 many of the same persons from the international community who were present
24 in the earlier meeting, but now they were joined by Mr. James Pardew, who
25 was a US special envoy, and we also that Mr. Szydlik, the operations
1 officer from the ICTY field office in Skopje, was present. Do you see
3 A. Yes, sir I do.
4 Q. Can turn, please, to page 2 of these notes?
5 A. Yes, sir.
6 Q. If you look at the fourth full paragraph of these notes it begins:
7 "Mr. Boskoski referred to the meeting."
8 Do you see that?
9 A. Yes, sir, I do.
10 Q. This paragraph begins: "Mr. Boskoski referred to the meeting with
11 the president and made several statements about the legality of the
12 Macedonian government to conduct its affairs as it saw fit."
13 Do you see that?
14 A. Yes, sir, I do.
15 MR. SAXON: Can we turn, please, to what is the last page of this
16 document, page 4 in the English version.
17 Q. Are you on the last page, Mr. Tucker?
18 A. I am, sir.
19 Q. There's a paragraph at the start of that page, and it reads
20 this -- it reads thus: "Howard Tucker addressed the 'chair'," and chair
21 is in quotation marks.
22 Mr. Tucker, who did you consider to be "the chair" of that
24 A. Mr. Boskoski, Minister Boskoski, sir.
25 Q. And why did you consider Minister Boskoski to be the chair of that
2 A. This meeting was called at the direction of the president and was
3 opened and resided over by the minister.
4 Q. When you say it was "presided over by the minister," you're
5 referring to Mr. Boskoski?
6 A. To Minister Boskoski, yes, sir.
7 Q. It was not presided over, for example, Stavre Dzikov?
8 A. No, sir.
9 Q. After that first sentence, according to this note, you said -- you
10 said that you did not believe that you had a function play in the meetings
11 of Sunday, 11 November 2001, and then you said this: "Mr. Tucker
12 suggested that with the permission of the Minister of the Interior, you
13 would speak to Professor Duma to arrange a suitable time for a meeting on
14 Sunday, 11 November, to discuss exhumation procedures."
15 And then it says: "Minister Boskoski agreed with the suggestion."
16 My question for you is this, Mr. Tucker: Why did you feel the need to
17 seek the permission of the Minister of the Interior?
18 A. The Minister of the Interior and, by association, the authorities
19 of Macedonia were conducting the -- the investigation and exhumation
20 process; and, as such, protocol dictated that I sought his permission to
21 deviate from what was suggested; that is, the meeting of the 11th.
22 Q. All right. Mr. Tucker, can you recall whether there were any
23 additional meetings that you attended with members of the Macedonian
24 authorities in which Ljube Boskoski was also present?
25 A. I think we've -- I have been shown several documents during the
1 course of my cross-examination which shows Minister Boskoski as being
3 Q. No, I -- all right.
4 Let me put my question perhaps differently, then.
5 During those meetings where Minister Boskoski was present with you
6 and these other members of the international community, international
7 institutions, did Minister Boskoski ever request that the ICTY, or the
8 Office of the Prosecutor, or any other international institution provide
9 assistance to the Ministry of Interior's own internal investigation into
10 the events at Ljuboten?
11 A. No, sir.
12 Q. During those meetings, did Minister Boskoski ever ask that the
13 ICTY, or any other international institution, assist the Ministry of
14 Interior to identify members of the Ministry of Interior who had been
15 present in and around Ljuboten on the 12th of August, 2001?
16 JUDGE PARKER: Yes, Mr. Mettraux.
17 MR. METTRAUX: Your Honour, we would wish to object to this line
18 of questioning. When we sought to ask, if you wish, the reverse
19 questions, the reverse set of the questions about the collaboration of the
20 Office of the Prosecutor towards the Macedonian authorities, Mr. Saxon
21 objected repeatedly. Now we believe that Mr. Saxon is trying to ask the
22 same set of question but putting the light, if I may uses that express, on
23 the other side, and we were stopped from asking those questions, Your
25 JUDGE PARKER: Mr. Saxon.
1 MR. SAXON: Your Honour, what is at issue in this case is whether
2 Minister Boskoski took reasonable and adequate measures to investigate the
3 events in and around Ljuboten, and that is wholly relevant. That's why
4 I'm asking -- that's why these questions are quite relevant. This is a
5 materially different matter from questions about what the Office of the
6 Prosecutor did. And, quite frankly, many, many questions about what the
7 Office of the Prosecutor did or did not do were allowed by the Chamber.
8 It was only one last series of questions that were disallowed.
9 [Trial Chamber confers]
10 JUDGE PARKER: Please continue, Mr. Saxon.
11 MR. SAXON: Thank you.
12 Q. During these meetings where you participated, Mr. Tucker, did
13 Minister Boskoski ever ask that the ICTY, or any other international
14 institution, assist the Ministry of Interior to identify members of the
15 Ministry of Interior who had been present in and around Ljuboten on the
16 12th of August, 2001?
17 A. No, sir.
18 Q. During those meetings, Mr. Tucker, did Minister Boskoski ever ask,
19 ever request, that the ICTY, or any other international institution,
20 assist the Ministry of Interior to identify which police officers might
21 have committed acts of misconduct against ethnic Albanians detained at
22 Ljuboten and subsequently gaoled at different police stations in the
23 Skopje area?
24 A. No, sir, he did not.
25 JUDGE PARKER: Mr. Mettraux.
1 MR. METTRAUX: Your Honour, I will object, again, but this time on
2 a different issue. If Mr. Saxon intends to ask Mr. Tucker about
3 particular meetings, then I believe it would be Mr. Saxon to identify the
4 meetings he is referring to. Mr. Tucker has made it clear, in his
5 evidence in cross-examination, that the meetings in question, the eight
6 meetings of the -- the eight meetings of the end of November of 2001, at
7 none of those meetings which pertain to Neprosteno and Ljuboten
8 investigation was Mr. Boskoski invited.
9 And as Mr. Tucker explained, the invitations were at the request
10 or the meetings were organised by the OTP, and the people invited were
11 selected by the OTP. If Mr. Saxon has in mind a different meeting or a
12 different set of meetings which pertain to the issue of Ljuboten, we
13 believe that in the fairness and the accuracy of the record he should
14 refer to the meetings in particular.
15 MR. SAXON: Your Honour, Prosecution is referring to the two
16 meetings that were attend the by Minister Boskoski, one of which he
17 presided over on the 10th of November, 2001.
18 MR. METTRAUX: Well, in that case, Your Honour, I have a further
19 objection to it.
20 Your Honour will recall that Mr. Saxon sought to have those two
21 records of meetings excluded, or rather, not admitted on the basis that
22 those meetings had to do with the Neprosteno investigation rather than the
23 Ljuboten; in fact, those were solely relevant to the Neprosteno matter.
24 To that extent, the line of questioning of Mr. Saxon is even less
25 relevant, in our respectful submissions.
1 MR. SAXON: In the Prosecution's respectful submission, for
2 whatever reason a meeting might have been called, that would not preclude
3 a minister from raising a separate matter, Your Honour, particularly given
4 who was present at those meetings.
5 And I will also note that my objection to the admission of a
6 document related to Neprosteno, in the Tetovo area, was denied. So,
7 obviously, there is some relevance to this case from such meetings.
8 JUDGE PARKER: I have had -- I have will to scroll back to the
9 question. It got lost in the seesaw of submissions. But the question is
10 particularly directed to Ljuboten and, therefore, the question is allowed,
11 Mr. Saxon, if I have got the right question, page 75 line 7 and following.
12 MR. SAXON: That would be the right question, Your Honour.
13 JUDGE PARKER: Very well.
14 I think, Mr. Mettraux, you have had a fair hearing on these
15 points, so that will be enough.
16 MR. METTRAUX: Your Honour, simply, we would wish to know which
17 meetings Mr. Saxon -- we understand the same question as Your Honour. We
18 would only --
19 JUDGE PARKER: He has specified that. And if the answer, then, is
20 nothing, because that didn't happen, that will be the answer.
21 I think Mr. Tucker may now need reminding of the question.
22 MR. SAXON: I will ask my last question again.
23 THE WITNESS: Thank you, Your Honour.
24 MR. SAXON:
25 Q. I will even add a date to make sure that the record is clear.
1 During the meetings on the 10th of November, 2001, Mr. Tucker, did
2 Minister Boskoski ever ask that the ICTY, or any other international
3 institution, assist the Ministry of Interior to identify which police
4 officers might have committed acts of misconduct against ethnic Albanians
5 detained at Ljuboten and gaoled at different police stations in the Skopje
6 area, in August 2001?
7 A. No, sir, he did not.
8 Q. During those meetings on the 10th of November, did Minister
9 Boskoski ever request that the ICTY, or any other international
10 institution, assist the Ministry of Interior to arrange meetings with
11 relatives of the deceased victims of the events at Ljuboten?
12 A. No, sir, he did not.
13 Q. During those meetings on the 10th of November, did Minister
14 Boskoski ever ask that the ICTY, or any other international institution,
15 assist the Ministry of Interior to arrange meetings with other persons,
16 ethnic Albanians, who had been allegedly mistreated at Ljuboten on the
17 12th of August, 2001, or in nearby police stations?
18 A. No, sir, he did not.
19 Q. Mr. Tucker, did any of the work performed by the ICTY and other
20 international institutions in Macedonia, during the Autumn of 2001 and the
21 first half of 2002, prevent the Ministry of Interior from carrying out its
22 own internal investigation into the conduct of police officers in and
23 around Ljuboten on the 12th of August, 2001?
24 MR. METTRAUX: Your Honour, we will object to that. If Mr. Saxon
25 has a particular matter in mind, I think it should be put to the witness,
1 if -- so if only to identify whether this is an issue that comes from
3 There's a number of questions that were raised, and we would not
4 object to those in particular as relating to the transmission of document,
5 if that is the matter that Mr. Saxon has in mind. The sharing of
6 information, I think, should be put clearly to the witness.
7 JUDGE PARKER: I would not interfere with the form of question,
8 Mr. Mettraux. That is the ultimate relevance of what has been a great
9 range of detailed questions, many of which had been subject to
10 considerable objection, and I'm speaking there of both cross-examination
11 and re-examination.
12 Continue, Mr. Saxon.
13 MR. SAXON:
14 Q. Can you answer my last question, Mr. Tucker?
15 A. I would appreciate it if you could repeat it for me, sir.
16 Q. All right. Did any of the work performed by the ICTY and other
17 international institutions in Macedonia, during the Autumn of 2001 and the
18 first half of 2002, prevent the Ministry of Interior from carrying out its
19 internal investigation into the conduct of police officers in and around
20 Ljuboten on the 12th of August, 2001.
21 A. In my view, no, sir.
22 Q. Okay. Can you please turn, Mr. Tucker, to what is at tab 27. So
23 it is probably in the first binder that Defence counsel provided to you.
24 MR. SAXON: Your Honour, this has probably been admitted, but it
25 had Rule 65 ter 1D -- excuse me, it is an exhibit. It is Exhibit 1D35.
1 A. Tab 27, yes, sir.
2 Q. And you may recall, Mr. Tucker, these are your investigator's
3 notes pertaining to a meeting that took place at a quarter to 10.00 in the
4 morning, on Tuesday the 27th of November, 2001, at the offices of the OSCE
5 in Skopje. Do you see that?
6 A. I do, sir, yes.
7 Q. And a number of representatives of the OSCE were present, as well
8 as you and Mr. Milner and Mr. Szydlik. Do you see that?
9 A. Yes, sir, I do.
10 Q. If you look, please, to the last full paragraph on page 1, your
11 notes reflect Mr. Milner, who was deputy chief of investigations in the
12 Office of the Prosecutor at that time, saying the following: "The ICTY
13 would like to see the authorities," i.e., the Macedonian authorities
14 "conduct their own investigation and conduct their own trials where
16 Do you see that?
17 A. I do, sir, yes.
18 Q. "ICTY would evaluate the evidence and observe how the authorities
19 deal with the issues; that is, Neprosteno and Ljuboten."
20 Do you see that?
21 A. Yes, sir, I do.
22 Q. Can we please now turn to what is tab 29, which I believe is now
23 Exhibit 1D196.
24 And these are your investigator's notes, Mr. Tucker, from a
25 meeting at the offices of the Macedonian public prosecutor in Skopje, at
1 1505 hours, on Tuesday, the 27th of November, and we see that present at
2 this meets was Mr. Stavre Dzikov, public prosecutor for Macedonia; one of
3 his assistants, who is not named; an interpreter; and then yourself, Mr.
4 Milner, and Mr. Szydlik?
5 A. That's correct, sir.
6 Q. And if you take a look in the second full paragraph, we see,
7 again, some comments attributed to Dennis Milner, the department chief of
8 investigations. And we see it says that Mr. Milner stated the reason for
9 his visit was a follow-up to that of the Prosecutor, Ms. Del Ponte, and
10 then it says: "He stressed the view of the Prosecutor that Macedonia was
11 a sovereign state and had the responsibility and capability to investigate
12 crimes of this nature," and then it continues: "He stated that it was not
13 within the mandate of the Tribunal to interfere with that judicial
15 Have you been following me, Mr. Tucker?
16 A. Yes, I have, sir.
17 Q. Can you turn to the next page, please, page 2. And, Mr. Tucker,
18 if you look at the fourth full paragraph, there is a paragraph, and it is
19 actually really just one sentence, beginning with the phrase: "Public
20 prosecutor stated."
21 Do you see that?
22 A. Yes, sir, I do.
23 Q. It says: "The public prosecutor stated," and perhaps the word
24 "that" is a grammatical error, "stated the willingness of the authorities
25 to cooperate with the Tribunal..." -- no, I was wrong. I will start over.
1 "The public prosecutor stated that the willingness of the
2 authorities to cooperate with the Tribunal is at all levels of the
3 administration, including ministerial, judicial, forensic, crime scene
4 technicians (police), and the security forces."
5 And one question that I had -- have for you, Mr. Tucker: When you
6 wrote that note about that meeting, if you can recall, what did you
7 understand what the word "cooperate" to mean, as the public prosecutor
8 used that term. Can you recall that?
9 A. To be open to the Tribunal at all levels, sir.
10 Q. Okay. And what does that mean, "to be open to the Tribunal"?
11 A. To assist us with any inquires that we have, to allow me as a
12 monitor to participate.
13 Q. Okay. Can we turn, please, to what is tab 28 of the binder. I
14 believe this is now Exhibit 1D611.
15 Mr. Tucker, this is one of your investigator's notes from a
16 meeting on the 27th of November, 2001.
17 JUDGE PARKER: Mr. Mettraux.
18 MR. METTRAUX: Sorry to interrupt, Mr. Saxon. I believe it is now
19 an Exhibit 1D196 -- 195, I'm told.
20 MR. SAXON: 1D195. Okay. Thank you very much.
21 Q. This is your notes of a meeting at the Ministry of Justice in
22 Skopje, and we see present was the then Minister of Justice for
23 Macedonian, Ms. Mojsova; one of the Minister's assistants; Dennis Milner;
24 yourself; Mr. Szydlik; and an interpreter.
25 And we see, in the fourth paragraph on the first page, Dennis
1 Milner explained that: "He would speak with the judiciary responsible for
2 the Ljuboten investigation in order to establish what inquiries have been
3 conducted to date, and any result that resulted from those inquiries."
4 Do you see that, Mr. Tucker?
5 A. I do, sir, yes.
6 Q. Can you turn to the next page, please, page 2. And on page 2,
7 the Minister of the Justice is speaking in the first paragraph. And then
8 in the second paragraph, the Minister of the Justice also stated that:
9 "The authorities had agreed to provide whatever was required to conduct
10 the investigations, ('manpower and other needs')."
11 Mr. Tucker, whose investigation was the Ministry of Justice
12 referring to, when he made this comment?
13 A. He is referring to their, the Macedonian authority's,
15 Q. All right. And according to this comment by the Minister of the
16 justice, then, who was going to receive this "manpower and other needs"
17 that was required?
18 A. The investigation team.
19 Q. The investigation team of whom or what institutions or government?
20 A. The Macedonian institutions.
21 Q. All right.
22 JUDGE PARKER: Yes, Mr. Mettraux.
23 MR. METTRAUX: Your Honour, in fairness to the witness, I wonder
24 whether the next paragraph should be put to him. It refers to the ICTY.
25 MR. SAXON: I don't see this as an issue of fairness to the
1 witness, Your Honour. I'm not afraid to say this to the witness; but if
2 the Chamber would prefer me to do this, can I do this. I don't see any
3 issue of fairness to this witness, but I'll do that.
4 JUDGE PARKER: We see no need, Mr. Saxon.
5 Are you at a convenient point or are you --
6 MR. SAXON: Almost. Within a minute I think I will be.
7 JUDGE PARKER: Carry on.
8 MR. SAXON:
9 Q. Mr. Tucker, when you participated in these meetings with members
10 of the Macedonian government authorities, the president, in November 2001,
11 was the ICTY taking over any investigations from the Macedonian
12 authorities at that time?
13 A. No, sir, absolutely not.
14 Q. At that time - the end of November 2001 - was the ICTY taking
15 primacy over, or taking charge of the formally investigative procedures
16 being performed by Macedonian government institutions?
17 A. No, sir.
18 MR. SAXON: Your Honour, if this would be a convenient time.
19 JUDGE PARKER: We will resume at five past.
20 --- Recess taken at 12.30 p.m.
21 --- On resuming at 1.06 p.m.
22 JUDGE PARKER: Mr. Saxon.
23 MR. SAXON: Your Honours. Can we please show the witness what
24 is -- it is now exhibit 1D33. It is tab 41 A of your binder.
25 Q. And, Mr. Tucker, yesterday, starting at pages 5341 to 5342 of the
1 transcript, there was a discussion about this particular document. And if
2 you'll recall, this was the motion or proposal signed or submitted by the
3 public security director of the Ministry of Interior, Goran Mitevski, on
4 the 7th of September 2001. It was addressed to the public prosecutor's
5 office and the investigative judge in Skopje, and it is a motion for the
6 exhumation and autopsy of five persons who were apparently buried in
7 Ljuboten village after the events of the 12th of August.
8 Do you see that?
9 A. Yes, sir, I do.
10 Q. Can you turn, please, to page 2 of this document?
11 A. Yes, sir.
12 Q. And near the bottom of page 2, there is a paragraph beginning on
13 the 14th of August, 2001.
14 Do you see that paragraph?
15 A. Yes, sir, I do.
16 Q. And that paragraph describes the fact that the Ministry of
17 Interior was notified that five corpses had been found in the region of
18 Ljuboten; an inspection team was set up, including an investigative judge
19 and a deputy public prosecutor and officials from the Ministry of
20 Interior; and they were going there to inspect the scene to identify the
21 five corpses. Do you see that?
22 A. Yes, sir, I do.
23 Q. And then in the next paragraph, at the bottom of page 2, we see
24 that the inspection team attempted to carry out its assignment several
25 times but was unsuccessful in doing so - we turning on to page 3- because
1 representatives of the ethnic Albanians in Ljuboten used force to
2 physically present them from accomplishing their task.
3 Do you see that?
4 A. I do, sir, yes.
5 Q. And then, in the next paragraph, we see that the Ministry of
6 Interior was continually monitored security situation in the village of
7 Ljuboten and concluded that the objective condition did not exist for the
8 inspection team to carry out their task in Ljuboten due to the security
9 situation, due to the automatic weapons and sniper fire.
10 Do you see that?
11 A. I do, sir.
12 Q. If we can now -- if you could turn, please, to what is tab 41,
13 this Exhibit 1D34. You were also shown this document yesterday,
14 Mr. Tucker. This is the Republic of Macedonia's, the Ministry of
15 Interior's information about the events in the vicinity of the Skopje
16 village Ljuboten from November 2001.
17 And, Mr. Tucker, if you could, please, turn to the very last page,
18 it says ERN number 1D00-1918.
19 Are you on the last page now?
20 A. Yes, sir, I am.
21 Q. Take a look at the last full paragraph, and it says this is:
22 "Having in consideration the importance of the exhumation as the
23 investigative act, in order to resolve the reasons for their death, the
24 Minister of the Interior, Mr. Ljube Boskoski, immediately after the case,
25 has submitted the written recommendation to the principal public
1 prosecutor office, Skopje II, in Skopje, to start conducting the process
2 of exhumation of the corpses of the people, in order to continue the
3 post-mortem and thorough examination."
4 Do you recall seeing this yesterday?
5 A. Yes, sir, I do.
6 Q. And do you recall, and this is at page 5346 of the transcript,
7 that you agreed with my colleague, Mr. Mettraux, that from the face of
8 this document, it appears that the Ministry of Interior's proposal, that
9 had been submitted by Mr. Mitevski that an exhumation be performed at
10 Ljuboten, actually originated from Minister Boskoski himself. Do you
11 recall that exchange with Mr. Mettraux?
12 A. I do, sir, yes.
13 Q. Could you turn now to tab 64, please, in that binder, and this is
14 Exhibit 1D73.
15 Mr. Tucker, as you may recall from yesterday, 1D73 is an Official
16 Note, dated the 18th of September, 2001, that records a meeting that took
17 place between Dragan Nikolovski, an investigative judge; Dr. Aleksej Duma,
18 the head of the Forensic Institute; Dragoljub Cakic, a deputy public
19 prosecutor; Mr. Besim Ramicevic, who was the head of the homicide
20 department in the general crime sector of the Ministry of Interior; and
21 Mr. Dzidrovski, the head of the identification department in the criminal
22 technology sector.
23 And you see from the first page that the discussion was about the
24 possibility of affecting an exhumation and autopsy of persons who had died
25 at Ljuboten. Do you see that?
1 A. Yes, sir, I do.
2 Q. Can you turn to the next page now, please, page 2. And after some
3 more discussion, we see a sentence beginning with: "Furthermore."
4 Do you see that, sort of in the middle of the page, Mr. Tucker?
5 A. Yes, I do, sir.
6 Q. It says: "Furthermore, in connection with the request, a security
7 evaluation will be required on the possibility of conducting the
9 And then, in the last paragraph, we see that: "The investigative
10 judge accepted our suggestion, and it will be realised accordingly, but
11 then the investigative judge stated the need for another meeting in order
12 to discuss things such as suggesting a time for conducting the
13 investigation, in accordance with the security conditions on the ground."
14 Do you see that, Mr. Tucker?
15 A. Yes, sir, I do.
16 Q. Can we take from this document that the security conditions on the
17 ground in Ljuboten were, can we say, at least still uncertain at this
18 time, 18th of September 2002 [sic]?
19 A. 18th of September 2001.
20 Q. 2001. Thank you for correcting me.
21 A. Yes, sir, we can.
22 Q. Mr. Tucker, can you turn to tab 83, and this is Exhibit P55.10.
23 Mr. Tucker, Exhibit P55.10 is a document dated the 18th of March,
24 2002. It was also shown to you yesterday. It was produced by the
25 Department Public Prosecutor, Dragoljub Cakic, and you will see that in
1 the end of the first paragraph Mr. Cakic says that: "It was impossible to
2 do so. It was impossible to examine the bodies at Ljuboten on the 13th
3 and 14th of August, 2001. Due to the known reasons, on-site inspection by
4 the competent bodies was made impossible."
5 Do you see that?
6 A. Yes, sir, I do.
7 Q. And then in the next paragraph, it says: "Several activities have
8 been undertaken on your part," and he is writing this to the investigative
9 judge, "so as to perform the proposed investigation action. Until now, it
10 was impossible to do so due to the same reasons. However, seeing as the
11 situation in question is now changed, it is certain that the exhumation is
12 to be performed soon."
13 So can we cake from this, Mr. Cakic [sic], that up until the 18th
14 of March, it was still impossible, due to the security situation in around
15 Ljuboten village, to carry out the exhumation. Is that a fair reading?
16 A. I would say so, yes, sir.
17 Q. So if you allow me, let me just summarize what we've just seen.
18 Sometime before the 7th of September 2001, Minister Boskoski makes
19 a proposal to do an exhumation in Ljuboten village; and then that proposal
20 was memorialised in the motion that was submitted by Goran Mitevski on the
21 7th of September, and that motion noted that such an exhumation was
22 impossible, due to the security situation in Ljuboten.
23 Are you with me so far?
24 A. Yes, sir, I am.
25 Q. And then, at least until the 18th of March, 2002, it remained
1 impossible to do an exhumation in Ljuboten village, due to the security
2 situation. Are you with me?
3 A. Yes, sir, I am.
4 JUDGE PARKER: Mr. Mettraux, I think we will wait until we hear
5 the question.
6 MR. SAXON:
7 Q. Mr. Tucker, how many years have you been a professional
9 A. Including my time with the Tribunal, 32, 33 years.
10 Q. Mr. Tucker, when someone proposes to you that you carry out an
11 activity that is impossible, do you find such a proposal very helpful?
12 MR. METTRAUX: Well, Your Honour, we will object at this time, and
13 that was the object of our original objection.
14 Mr. Saxon has summarized the motion, as he called the documents
15 sent by Mr. Mitevski on the 7th of September, and said that the motion
16 noted that such an exhumation was impossible, due to a security situation
17 in Ljuboten.
18 Mr. Saxon should be more precise, particularly in view of the
19 question or the proposition as put to Mr. Tucker. The situation to which
20 Mr. Mitevski referred to in the motion in question was the situation as
21 the 14th of August 2001.
22 MR. SAXON: I do stand corrected by Mr. Mettraux.
23 What Mr. Mitevski stated was that: "As of the 14th of August, it
24 was impossible, due to the security situation, to carry out an
1 Q. And we saw that in September, the 18th of September, the security
2 situation was still uncertain. Do you recall that, Mr. Tucker?
3 A. Yes, sir, I do.
4 Q. And we also saw that up until the 18th of March, 2002 it was still
5 impossible to do an exhumation in Ljuboten village. Do you recall that?
6 A. Yes, sir, I do.
7 Q. So my question remains the same: When someone proposes to you
8 that you carry out a activity that cannot be performed, do you find that a
9 very helpful proposal?
10 MR. METTRAUX: Your Honour, I really do not wish to interrupt.
11 JUDGE PARKER: No, Mr. Mettraux, please be seated.
12 THE WITNESS: No, sir, I don't.
13 JUDGE PARKER: Now we have allowed the question and the answer,
14 Mr. Saxon. Do you think that there can be any useful comparison made
15 between the situations facing this witness in his career and the situation
16 posed here?
17 MR. SAXON: Yes, I do, Your Honour. The comparison simply focuses
18 on an impossible task, whether it was -- whether it was an impossible
19 task -- a task that is impossible for this witness to have been performed
20 15 years ago when he was in the United Kingdom?
21 JUDGE PARKER: We no need to go into lengthy submissions. We are
22 attempting to point out to you, Mr. Saxon, that you are right on the edge
23 on anything that might be of use in our of determination of the issues in
24 this case, a question of that type.
25 MR. SAXON: All right. Thank you.
1 Q. Mr. Tucker, if you can turn to what is tab 50, which will be in
2 the second binder, please, this is 65 ter 1D663.
3 MR. METTRAUX: Your Honour, this would be Exhibit 1D221, if it
5 THE WITNESS: Tab 50, yes, sir.
6 MR. SAXON:
7 Q. Mr. Tucker, yesterday, at pages 5366 to 5373 of the transcript,
8 there was a discussion between yourself and Mr. Mettraux related to how
9 ante-mortem information would be obtained from the families of the
10 deceased in Ljuboten. Do you recall that discussion?
11 A. Yes, sir, I do.
12 Q. This is a -- your investigative notes from a meeting at 1300
13 hours, on the 7th of March, 2002, with Mr. Cakic, the deputy public
14 prosecutor; and a judge, Jani Nica; and the investigative judge, Dragan
16 And can you turn, please, there's a discussion here on the first
17 page about security concerns for the exhumation, and then can you please
18 turn to page 2.
19 And you see in the second paragraph of page 2, we see that
20 Dragoljub Cakic, the public prosecutor, raised the point that: "Even
21 during peacetime, the Albanian community never consented to post-mortem
22 examination of the dead, including instances of homicide. He queried the
23 consent provided by the relatives of the deceased for such an operation to
24 proceed now."
25 Do you see that?
1 A. Yes, sir, I do.
2 Q. And, yesterday, I believe you explained that: "Eventually, it was
3 decided that the family members of the deceased would provide such
4 information to the investigative judge on the premises of the OSCE." Is
5 that correct?
6 A. Yes, that's correct, sir.
7 Q. And did that actually occur? Was there a time or an event when
8 relatives of the deceased came to the OSCE and the investigative judge was
9 there and he took the necessary ante-mortem data? Did that actually
11 A. I believe it did, yes, sir.
12 Q. And I believe you mentioned yesterday that although that was an
13 unusual event, it was within the law of Macedonia or it was not outside
14 the law of Macedonia.
15 A. That's correct, sir. It would require, I think, some special
16 considerations by the judiciary.
17 Q. All right. Would it be fair, then, to say that in March of 2002,
18 prior to the exhumations, even at that time with all of the ongoing
19 inter-ethnic tensions, with respect to obtaining necessary ante-mortem
20 information from the families of the deceased at Ljuboten, the Macedonian
21 authorities were able to accomplish more than they could during peacetime,
22 at least according to the opinion of Mr. Cakic. Is that true?
23 A. Yes, sir, it would appear so.
24 MR. METTRAUX: Your Honour, I really apologise to interrupt once
25 again, but the question, we believe, again, doesn't reflect the
1 transcript. There was no suggestion that more was achieved at that but
2 during peace time. What Mr. Cakic underlined is that during peace time as
3 in during the crisis situation, the families, the Albanian families,
4 sometimes refused to provided antemortem information. There is no
5 indication on the record that they were not successful during peacetime to
6 obtain this information.
7 So the suggestion made by Mr. Saxon in his question that there
8 would be an indication to the effect that they were being more successful
9 than in peacetime, I believe, is inaccurate.
10 MR. SAXON: Your Honour, I'm clarifying a point or points that
11 were raised on cross-examination, and I'm using this document which is a
12 Defence exhibit to do that.
13 JUDGE PARKER: Please continue.
14 MR. SAXON: Thank you.
15 Q. If you could - and you will probably have to turn to the other
16 binder, the first binder, Mr. Tucker - could you turn to what is tab 19,
17 please. This is Exhibit 1D191.
18 A. Yes, I have it, sir.
19 Q. Mr. Tucker, this is the letter of agreement between the Office of
20 the Prosecutor of the ICTY and the public prosecutor of Macedonia, which
21 was shown to you during cross-examination, and I have some questions for
22 you about this document.
23 In the first paragraph, we see that Patrick Lopez-Terres, the
24 chief of investigations, is writing to Mr. Dzikov that: "Further to
25 previous meetings with representatives of the OTP, and verbal agreements
1 made in relation to events at Ljuboten during 2001, I hereby document and
2 present to you the conditions agreed for the progress of the relevant
3 exhumations and subsequent judicial investigation process," and then we
4 see a list of 14 so-called conditions.
5 My question for you, first of all: These 14 conditions, they were
6 conditions for who to do what?
7 A. These were the conditions agreed upon in order to facilitate the
8 authorities of Macedonia to undertake the exhumation at Ljuboten.
9 Q. And who was going to facilitate the authorities of Macedonia to
10 undertake the exhumation with respect to this agreement?
11 A. With the assistance of myself as a mediator.
12 Q. Okay. And would it be fair, then, to say that, well, the Office
13 of the Prosecutor through you was going to perform this facilitation?
14 A. That's correct, sir, yes.
15 Q. So my question -- my next question then is: These conditions,
16 whose participation or activities in the exhumation were these conditions
17 referring to?
18 A. The authorities in Macedonia.
19 Q. Okay. And why were these conditions important to the Office of
20 the Prosecutor?
21 A. Part of the -- the difficulties in commencing this operation
22 evolved around various issues which have been highlight the through my
23 examination and cross-examination, primarily the security conditions and
24 the reluctance through mistrust of the relatives of the victims. So it
25 was necessary to find -- to find and hopefully able to create a situation
1 whereby all parties would be agreeable to the process of the exhumation
2 and autopsies on the victims.
3 Q. If the ICTY had not agreed to such conditions, or if agreement had
4 not been reached between the ICTY and the Macedonian authorities on these
5 14 conditions, did anything prevent the Macedonian authorities from going
6 forward with the exhumation?
7 A. No, sir.
8 Q. Okay. At any point, then, could the Office of the Prosecutor
9 control when or how the exhumation was going to be carried out?
10 A. I think that's not necessarily a simple question to answer,
11 because as the role of a facilitator, as you put it just now, we, the OTP,
12 that is, myself, would have to create a suitable date that was acceptable
13 to all parties that were involved in this process, both the authorities in
14 Macedonia, the relatives of the victims, and, of course, the international
15 organisations that were participating, such as the OSCE and the NATO and
17 Q. All right. I guess my question is, though: Who had the final
18 word as to how and when the exhumation would be carried out?
19 A. The Macedonian authorities.
20 Q. All right. Can you turn, please, to what is tab 10 in your
21 binder, Mr. Tucker.
22 You were shown this document during cross-examination, and you
23 were asked whether you knew that the Ministry of Interior had sent the
24 report of the -- actually, let me start earlier, Mr. Tucker.
25 If you take a look at the document in tab 10, we see that it is a
1 request for assistance, and it quotes part of the report of the first
2 commission set up to investigate the events in Ljuboten. This was the
3 commission that was established by Minister Boskoski in 2001, and we see a
4 paragraph of that report quoted in this request.
5 Do you see that?
6 A. Yes, sir, I do.
7 Q. Do you know for a fact, Mr. Tucker, which Macedonian institution,
8 or which individual in Macedonia, provided this information to the Office
9 of the Prosecutor?
10 A. I don't, sir, no.
11 Q. And if you turn, please, to tab 11 --
12 MR. METTRAUX: Your Honour. Perhaps, before we proceed, I would
13 like to seek a clarification from Mr. Saxon as to whether they take issue
14 with their own letter, which clearly states that the document was provided
15 to the Office of the Prosecutor by the Ministry of Interior. We
16 understood that there was no issue taken since it is an official document
17 of the Office of the Prosecutor.
18 If the Prosecution, indeed, takes issue with that fact, we would
19 seek to tender the letter, Your Honour.
20 MR. SAXON: I stand corrected, Your Honour. I will move on.
21 Q. Can you turn, please, to what is tab 28 of the binder, Mr. Tucker,
22 and this is Exhibit 1D195.
23 And when you were shown this document, Mr. Tucker, and you were
24 asked to comment about the comments of Dennis Milner, saying where
25 Mr. Milner said in the fourth paragraph that "he would speak with the
1 judiciary responsible for the Ljuboten investigation, in order to
2 establish what inquiries had been conducted to date and any result of
3 those inquiries," you said that: "The OTP's view was: Don't interfere
4 with the judicial investigation."
5 Do you recall that?
6 A. Yes, sir, I do.
7 Q. Now these notes were produced about a meeting of the 27th of
8 November, 2001; and, of course, your work in Macedonia continued through
9 the first part of 2002.
10 My question is: This policy, do not interfere with the
11 investigation of the Macedonian authorities, was that always the OTP's
12 policy, as long as you were involved in this work?
13 A. Yes, sir, it was.
14 Q. Okay.
15 JUDGE PARKER: Mr. Saxon, we've reached time. I don't know
16 whether you're checking to see whether there is a last question; if not,
17 we might continue on Monday.
18 MR. SAXON: Your Honour, I have checked, and I don't believe there
19 is a last question. I believe I have asked all the questions I need to
21 And, again, I'm grateful to Mr. Tucker for his patience.
22 JUDGE PARKER: Mr. Tucker, you will be pleased to know that that
23 concludes the questions for you. The Chamber is grateful for your
24 assistance, and you are, of course, now able to go back to your ordinary
1 THE WITNESS: Thank you, Your Honours.
2 JUDGE PARKER: The Chamber will now adjourn. We resume on Monday
3 at 2.15.
4 --- Whereupon the hearing adjourned at 1.45 p.m.,
5 to be reconvened on Monday, the 24th day of
6 September, 2007, at 2.15 p.m.