1 Tuesday, 4 March 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 2.19 p.m.
6 JUDGE PARKER: Good afternoon.
7 Good afternoon, Mr. Dimitrov. The affirmation you made at the
8 beginning of your evidence still applies.
9 WITNESS: BRANISLAV DIMITROV [Resumed]
10 [Witness answered through interpreter]
11 JUDGE PARKER: Ms. Regue.
12 MS. REGUE: Thanks, Your Honours.
13 Cross-examination by Ms. Regue: [Continued]
14 Q. Good afternoon, Mr. Dimitrov.
15 Mr. Dimitrov do you recall that yesterday I show you first an
16 extract from the first guest book, actually an extract that you provided
17 to the Defence, and I indicated to you that there was a method of
18 registering the guests which was that if one guest stayed seven days that
19 guest will be registered every single day.
20 Do you recall that, Mr. Dimitrov?
21 A. Yes, I do recall.
22 Q. Then I show you an extract from the second guest book, which was
23 65 ter 1213, and I indicated to you that the method of recording changed
24 with the second guest book, meaning that there will be a single entry per
25 guest with the date and time of entry and then the date of departure.
1 Do you recall that, Mr. Dimitrov?
2 A. Yes. That was number 208 for person from Tripoli.
3 Q. You have a very good memory, I see.
4 Mr. Dimitrov, I would like actually to correct myself because the
5 first guest book which starts in March 2002, started with the second
6 methodology, not with the first entry, but one month approximately
7 afterwards. Therefore, for a period of one month, second guest book was
8 still using the first methodology. It was after mid-April until March
9 2004 that the second methodology was applicable in the second guest book.
10 I just wanted to clarify that with you, Mr. Dimitrov.
11 A. Yes, I agree with you that the first methodology was used for
12 sometime and if you say it was sometime in April when we started the
13 second methodology I agree. And it is used up to date.
14 Q. Thanks. Just to have it in the record if we could go quickly to
15 65 ter 1213, which is actually tab number 10, Mr. Dimitrov.
16 And if we could go to e-court page 33, which should be page 32 in
17 the hard copy, Mr. Dimitrov.
18 As I mentioned you can see in the entry 191 that one person from
19 Santa Patna de Mogoda actually is recorded from the 16th of April until
20 the 17th of April, 2002. If we go to the next page, Mr. Dimitrov, which
21 should be 33 in e-court, 33 in your hard copy you see the same person in
22 the entry, 197, he or she appears registered for the following day. But
23 then as can you see in entry 198, the second methodology starts to apply,
24 as this person from Edinburgh is registered from the 18th of April, until
25 the 27th of April, 2002.
1 So, Mr. Dimitrov, will be fair to say that the authorities
2 required or change the methodology system in order to have a more accurate
3 methodology of recording and also to avoid possible mistakes in the books?
4 A. I apologise, the organs wanted us to follow the new methodology.
5 The person that you are mentioning here, I'm not sure and at least I
6 cannot confirm today it is possible that the person said he would stay
7 just for one night and then changed his attention to stay for more
8 nights. I really couldn't say. It is the book that gives the
9 information. I am unable to give the correct information right now.
10 Q. But would you agree with me that after entry 198, you can see that
11 the new methodology applies?
12 You are free to check the following page, if you wish,
13 Mr. Dimitrov.
14 A. Yes, madam. I already said maybe that person said that he would
15 stay for just one day, and he was registered for that day and checked out
16 for the following day. Maybe the next person -- the next day the person
17 changed his mind and wanted to stay for longer. Maybe that person wasn't
18 sure how long he would stay in that hotel in the very beginning.
19 Q. But, indeed, he or she appears registered for longer than one day,
21 A. Yes, this is exactly what I'm say.
22 Q. Okay. Thanks. But, Mr. Dimitrov, you didn't answer my first
23 question. I was putting to you whether this changes made by the
24 authorities in the way of recording the entries in the guest books were
25 generally made in order to achieve a more accurate, accurate way of
1 recording the entries and to avoid possible mistakes.
2 A. The organs, that is the Ministry of Internal Affairs, the
3 department for control of foreigners, they come to us and tell us what
4 methodology we should use. It is not up to us to think whether the new
5 methodology is more accurate than the previous one, or better than the
6 previous one. It is up to us to follow the instructions from the Ministry
7 of Internal Affairs pertaining to the registration of guests.
8 Q. Mr. Dimitrov, I will move to another topic now.
9 If I recall from your evidence in chief, you said that in 2001 you
10 had two people working at the reception desk; one lady and also a young
11 gentleman. And they were working in two shifts, like early morning until
12 late afternoon shift and then the other person would start late afternoon
13 until evening, right?
14 A. The first person -- I apologise. The first person starts his
15 shift at 7.00 in the morning and works until half past 1.00 -- no, sorry,
16 3.30 p.m., and the second person comes at 3.30 p.m., and leaves at 10.00.
17 And he has additional half an hour to take the card and forms that I
18 mentioned yesterday to the police.
19 Q. And, in general there will always be the same persons who will
20 work in the same shift, meaning the lady in the mornings and the gentleman
21 in the afternoon and evenings.
22 A. Yes. Very often if not always the lady worked in the morning
23 shift, and the young man worked in the afternoon shift, unless the lady
24 needed some days off, then he would take her shift as well.
25 Q. And what about the nights? What about one guest who wants to
1 check into the hotel after 10.00 or 10.30 p.m.?
2 A. I said in the beginning that we are registered as bed and
3 breakfast, not as a hotel. And our obligation is to have a person at the
4 reception desk until 2200 hours. If a person wants to check in or check
5 out after this time, then in the restaurant, because the restaurant covers
6 most of that building, there is a cleaner and there is a night guard. The
7 cleaner is given the keys, in cases when we have a guest that announced
8 his or her arrival after 2200 hours. The night guard takes the person to
9 the bed and breakfast facility, opens the door and reports the guest's
10 arrival to the receptionist in the morning and the receptionist, that is
11 in the morning shift, registers the guest and notes down all information
12 that are required.
13 Q. Thanks. And, Mr. Dimitrov, correct me please if I understood you
14 wrong in your evidence in chief, I understood that in general, meaning
15 during the day, if a person wants to check in into your hotel, he or --
16 his or her personal data will be entered first into a piece of paper, I
17 think that you call it a carton box that will be later taken to the police
18 and it will be afterwards that the information from this piece of paper
19 will be entered into the guest book. That's what you testified, sir?
20 A. That is correct. That is what I said. As regards the person that
21 arrives after all employees, meaning the receptionist, go home, they are
22 requested to give their passports in the morning to the receptionist that
23 works in the morning shift.
24 Q. And when, actually, the information which was initially recorded
25 in these piece of paper in this carton box will be transferred into the
1 official guest book that we have seen?
2 A. Usually it is done by the person that works in the morning shift,
3 and most frequently it was Snjezana.
4 Q. Okay. And how often it will be? Would it be every day, would it
5 be after a short period, a longer period of time, that the information
6 will be transferred from the piece of paper to the guest book?
7 A. You would have to ask Snjezana about this. I really couldn't
8 answer this question.
9 Q. Okay. So you don't know, sir, whether, for a certain period of
10 time, it could be that the information was kept in this piece of paper and
11 it was not transferred into the official guest book, right? That's your
13 A. No. My testimony was that the following day, in the morning, the
14 person who worked in the first shift had the obligation to finish these
15 things, meaning to register the guest in the guest book. Whether the
16 receptionist would do that five minutes after his or her arrival at work
17 or an hour, it's not up to me to say.
18 Q. So if I understood you correctly, Mr. Dimitrov, indeed, the person
19 working at the reception desk will be using, as a daily record, another
20 document which will be different from the guest book, a contemporaneous
21 document where every day he or she will be entering the data of the new
22 guests, and perhaps also the time of arrival of the new guests and then
23 later on, meaning the following day, this lady had the obligation to
24 introduce it in the guest book, right?
25 A. When a guest arrives, and I said that yesterday, when the guest
1 arrives he is checked -- he is -- he gives information on a separate
2 carton form and this information from the form are put in the guest book.
3 That is all I can say about this.
4 Q. But this information will be put in the guest book the following
5 day, right, in the morning?
6 A. If a guest arrives at midnight or at 2.00 a.m., then the
7 information about his or her arrival is not registered by anybody else but
8 the person that comes to work in the morning shift, and most frequently it
9 was Snjezana.
10 Q. Okay, Mr. Dimitrov. But what about a person who comes within the
11 working hours? My question is, this -- the data, the information of this
12 person, will be initially entered in this piece of paper, right, and only
13 afterwards it will be entered into the guest book. Correct?
14 A. Yes, exactly.
15 Q. And when it will be that it will be entered into the guest book?
16 If, for example, one person, let's say, checks in 10.00 a.m. in the
17 morning, his or her information is written down in this piece of paper,
18 right, when that information which will be actually transferred into the
19 guest book.
20 A. You said very well, madam. If a person comes in the hotel at
21 10.00 a.m., then we have a receptionist that fills in the form and the
22 receptionist immediately registers the guest in the guest book, just like
23 registration in the form. I said persons that arrive later in the evening
24 or after the working hours, the person that works in the morning shift
25 registers these guests that came during the night.
1 Q. Okay. So would you agree with me, Mr. Dimitrov, that if this
2 person working in the night by any chance makes a mistake and didn't --
3 didn't tell actually to this lady all the information about one guest, or
4 omits an information, this lady will write down actually the information
5 that he -- that she was told, right, including the mistake, including the
7 A. The person that works in the night shift, that person, the only
8 thing he does, is to give the room keys to the guest, and that's all. The
9 day after, the morning after, when the receptionist working in the morning
10 shift arrives, he or she takes the passports or the ID documents from the
11 guest and fills in the forms.
12 So there is a belatedness of ten, 12, hours.
13 Q. And, Mr. Dimitrov, these originals or these pieces of papers that
14 you mentioned, the piece that you actually gave to the police, did you
15 keep copies of them?
16 A. The forms, that we give to the ministry of interior affairs we are
17 not obliged to keep copies of them.
18 Q. So you actually -- we cannot actually -- we cannot compare, we
19 cannot be sure that all of the information that it's registering these
20 pieces of paper is actually included in the guest book, right, because you
21 are not keeping a copy of them?
22 A. That is what you are saying. I'm not saying it.
23 Q. But how can we be sure if we don't have that original piece of
25 A. The original document is the passport. It happens very often that
1 the passports or ID cards of the guests are kept and are not given back to
2 them until they leave.
3 Q. But you didn't answer my question, sir. I was asking that as you
4 didn't keep actually these original carton, these original pieces of paper
5 that you give to the police or you didn't make copies, you were not in a
6 position to actually compare in 2001 when you were doing like single
7 entries per day, you were not in a position like to check whether the
8 entries were correct against the piece of paper that you had given to the
10 A. Madam, I told you that very often we keep the passports until the
11 guest checks out.
12 Q. Mr. Dimitrov, you have testified that you were not the one who
13 were doing the entries, right?
14 A. Exactly. I have not made any entry yet.
15 Q. And you're actually a busy man travelling quite often because of
16 business. Correct?
17 A. For the period that we are talking about, and that was two or
18 three months that the upper floor of the facility was working where the
19 bed and breakfast is, I was really interested in everything. I wanted to
20 know how many rooms were occupied. I wasn't interested in the names of
22 Q. And, indeed, you were not even in Macedonia from the 6th to the
23 19th of August, 2001, were you?
24 A. Yes. From the 6th to the 19th of August, I was not in Macedonia.
25 Q. So even if you had wanted, you were not in a position to check
1 whether the record -- the registering of the guests was properly done.
2 A. I understand what you're trying to put to me, but I have to say
3 that I believe that there was no mistake made.
4 Q. You believe there was no mistake there made. But, again, you were
5 not there to check it, right?
6 A. Every man can make mistakes, but I'm convinced that the employees
7 were not trying to make manipulation with the information. I have no such
8 indications at least not until now.
9 As a matter of fact, why would anybody make a mistake for that
10 period, because then mistakes could have been made in the period
11 afterwards, as well.
12 Q. I'm not talking about manipulation, Mr. Dimitrov. I'm talking
13 about omissions or mistakes basically.
14 You actually have testified that information that was entered in
15 this carton, this piece of paper if it was during the day when the person
16 was at the reception desk was actually transferred straight away into the
17 guest book. But you actually -- that was the instruction that that was
18 instructions that they actually gave to the people in the reception,
19 right? You were not in a position to check that the information was
20 transferred straight away, at the same time, right?
21 A. I wasn't the person that was giving the instructions to the
22 employees, by the ministry of interior affairs as pertaining to the guest
23 books. At the beginning I said because we were only working for a few
24 months I was checking every day how many rooms were occupied. I wasn't
25 checking the names of the guests.
1 Q. So you actually -- you know for certain that the transfer of
2 information from that carton from that piece of paper to the book was done
3 at the same time, right, it could happen that it was during the day?
4 A. I told you several times, that if a person arrives late in the
5 evening, his registration is done in the morning after, and that is what
6 I've reiterated several times.
7 Q. Sir, can we please go to Exhibit P542, which is tab 4 in your
8 binder. And if we could go, please to the first photo. Yes.
9 Sir, this is the first guest book, the one which goes from March--
10 excuse me, May 2001 until March 2002. Would you agree me -- that is
11 actually the cover.
12 Would you agree with me that the cover page practically looks new
13 in touch from the exterior?
14 A. I agree fully with you.
15 MS. REGUE: And if we could go please to the next page of this
17 Q. Would you agree with me that this is not the case with the second
18 guest book as we can see that the binding is a bit broken as well as the
19 edges are a bit torn? Would you agree with me in this visual observation?
20 A. I agree fully with you.
21 MS. REGUE: If we could go please to the third page of this
23 Q. Sir, the second guest book is the one which is placed on the top
24 of the photo. As can you see, the pages in the second guest book are a
25 bit more yellowish, and they look a bit much more used than the first one.
1 Would you agree with me on that visual observation, Mr. Dimitrov?
2 A. I agree with you fully.
3 MS. REGUE: And if we could go to the last photo, please.
4 Q. Again, sir, we see in the upper part of the photo the second guest
5 book and in the bottom of the photo we see the first and much older in
6 time guest book.
7 We see that the binding of the second guest book is broken, while
8 the first book looks in a good shape. Would you agree with me in that
9 visual observation, sir?
10 A. I fully agree with you.
11 MS. REGUE: And if we could briefly go to Exhibit 1D331, page 8.
12 Q. It will be tab 8 of the binder, sir.
13 Sir, you have been shown this photo in your examination-in-chief,
14 and you -- well, would you agree with me that the piece of paper
15 appears -- the piece of paper actually from the Macedonian authorities
16 appear -- appears a bit broken, right?
17 Actually, the second -- the second guest book is the one which is
18 placed in the upper part of the photo, of the screen, yeah.
19 A. Yes, I agree that the paper is torn.
20 Q. You actually testified on page 56 of yesterday's transcript that
21 this slight crack on the stamp of the Macedonian authorities was done by
22 the investigator of the Office of the Prosecutor, Mr. Thomas Kuehnel,
23 while reviewing the book. But, Mr. Dimitrov, you were not present, were
24 you, when he was actually reviewing the book?
25 A. Yes. During yesterday's session I did mention that Snjezana
1 conveyed to me that this was done by Mr. Thomas Kuehnel.
2 Q. So it is your evidence that Mr. Thomas Kuehnel, in front of
3 Snjezana and together in front also of the interpreter of the Office of
4 the Prosecutor, actually he made this slight crack in the guest book.
6 A. It is correct that Snjezana told me that Mr. Kuehnel had done
7 this, perhaps unwittingly.
8 Q. Mr. Dimitrov, you gave a statement to Defence counsel in March
9 2007. It was a statement of eight lines dealing almost exclusively with
10 the guest books of your hotel.
11 You recall that, right?
12 A. Yes, I recall.
13 Q. You knew that most likely you will come to this Tribunal to give
14 evidence about these guest books at some point, didn't you?
15 A. Yes, about 30 days ago I begin to grasp the fact that I would be
16 coming here.
17 Q. But in October 2007, when Thomas Kuehnel came to your hotel asking
18 to see the guest books, you were quite aware of the importance of these
19 documents for the current proceedings, right, you had given a statement
20 about them.
21 A. Yes. I spoke with Mr. Kuehnel, and I knew what he wanted.
22 Q. Knowing that you would most likely come to testify before this
23 Court and to talk mainly about these books, it didn't occur to you to
24 inform your lawyer, the lawyer to whom you gave the statement, even to
25 call Thomas Kuehnel or the Macedonian interpreter, to inform them about
1 what happened?
2 A. Until I knew that I was coming here, this was something I didn't
3 think was going to be discussed until now.
4 Q. But, sir, in your statement, in March 2007, you are almost talking
5 only about your guest books, right?
6 A. In my statement of March 2007, I do speak about my guest books.
7 MS. REGUE: Could we please call 1D330 and go to page 1. It's a
8 92 bis attestation of this witness's statement.
9 Q. Unfortunately, Mr. Dimitrov, I think that in tab 1 you only have
10 your statement, not the 92 bis attestation. But you can look at the
11 screen and you will see that.
12 Sir, in January of this year your statement was certified by a
13 presiding officer of the registry of this Tribunal. In this proceeding in
14 general, the witness, meaning you, is always given the opportunity to
15 amend or to clarify or even to add something that he or she believes
16 important or feels that it is incorrect in his statement.
17 In particular, if we look -- if we could please go to the second
19 Sir, you see additional remarks. That's like in the centre of the
20 screen. In general, there it will be when the witness wishes to introduce
21 a modification from his or her statement. But it seems that you didn't
22 introduce any modification, any clarification. Basically in January 2008
23 you knew that you were going to testify here, and you didn't add this
24 relevant fact?
25 A. When the person from the Tribunal came, when I was signing the
1 statement and asked me whether I agreed with the statement I concurred and
2 I said I agreed. My only comment was that I wasn't 100 per cent sure
3 about part 2 or 3, I'm sure exactly which point. As for the issue about
4 certain tears in the book, I really had no idea about this or that I
5 should be thinking about this.
6 Q. But, sir, if you actually -- you had expressed your concern about
7 the number of years that the books have to be kept according to the
8 legislation, generally, I mean, it should be added there, it should be
9 added in additional remarks but is not there, sir.
10 A. This is where -- saying to me today. Up until today I was not
11 aware of this.
12 Q. But I'm just putting to you, sir, that if you indeed told the
13 representative of the registry of this Tribunal that you were not sure
14 about certain paragraph of your statement he or she would have entered
15 that concern in that additional remarks part and it's not there.
16 A. I mentioned this, that I wasn't 100 per cent sure.
17 Q. Okay. Sir, if we could please go to -- again, to that the
18 previous photo which we had in the screen, which is in tab 8 of your
19 binder, 1D331, page 8.
20 Sir, you testified -- you have it in front of you, sir? Yeah.
21 Sir, you testified in-chief that this piece of paper and this
22 stamp are given by the Macedonian authorities after you buy the guest
23 book, right?
24 A. Yes. Once we buy it, once we make the binding, as it should be.
25 Q. And you testified that the purpose of this piece of paper and this
1 stamp is to guarantee the accuracy and reliability of the book. Do you
2 recall this evidence?
3 A. Yes, I recall having said this.
4 MS. REGUE: If we could please go to 65 ter 1214. It's tab 9.
5 And if we could go to page 200 in Macedonian and it's the only page in
6 English which is translated.
7 Q. That's actually the first guest book that it was provided by you
8 to the investigator of this Tribunal.
9 Sir, do you see the date when this stamp was -- and this actually
10 piece of paper was actually placed into the document?
11 A. Yes. The date is 10th of May, 2001.
12 MS. REGUE: If we could go, please, to page 3 in e-court.
13 Q. It will be, sir, the first page of the guest book that it still is
14 in tab 9, and it is only in Macedonian.
15 Sir, do you see the date of the first entry of your first customer
17 A. Yes. The date is 23rd of May, 2001.
18 Q. Actually, 13 days after the Macedonian authorities gave you stamp
19 your guest book, right?
20 A. This is fully correct.
21 Q. Sir, actually, the stamps and the piece -- this piece of paper
22 which is glued into your foreign guest book, they are actually issued at
23 the very beginning when you still didn't even start recording the
24 information in your guest book, right, when basically the guest book is
1 A. I don't understand your question well. Could you repeat it.
2 Q. Sure. When the Macedonian authorities stamped and put the date,
3 10 of May, 2001, did you have any entry in your guest book? Had you
4 registered any clients?
5 A. As of the 10th of May, when the stamp was placed there, up until
6 the 23rd of May of the same year, that is to say, 13 days later, this is
7 the first guest whoever came to us. 14 days we had no guests at all.
8 Q. So basically your answer is, no, that when the Macedonian
9 authorities actually stamp, when the Macedonian authorities actually stamp
10 and review the guest book, the guest book was empty basically?
11 A. Of course the guest book was empty.
12 Q. Sir, in addition to this stamp that we have seen, is there any
13 physical evidence in the guest book which shows us that the Macedonian
14 authorities have checked the content of the book, as well as the accuracy?
15 A. Physical evidence that the Macedonian authorities from the MOI,
16 there is no -- there is no such evidence. But when they feel there is a
17 need to do so they come and check the book and they take information which
18 they deem to require.
19 Q. But, sir, in other words you are telling us that in your guest
20 book there is no stamp, there is no evidence that the Macedonian
21 authorities have reviewed the guest book once the guest book has been
22 completed or when the guest book has been filled, right? They didn't sign
23 it, they didn't stamped it?
24 A. It is not mine to say how the Macedonian authorities should
1 Q. Could I take your answer as a no?
2 A. You can take your answer -- my answer in the following manner.
3 When the police come, they look at the guest book, they take the
4 information they need, and they leave. That's it. For me, it is
5 important to make the payment, the daily payments for those guests which
6 are my guests to pay my taxes. The rest is not mine ...
7 Q. But there is no evidence that the Macedonian authorities actually
8 came and look at your book, right?
9 A. Whether the Macedonian authorities come to look at the book or
10 not, this is their right. They resort to as much as they feel they need
11 to. For me, it is important that I don't look at the guests by their
12 first or last names. I look at the number of guests which are at the bed
13 and breakfast and the amount of money which needs to be collected.
14 Q. Sir, can you please go to tab 15, which will be Exhibit 1D333.
15 These are the set of bills that you actually brought this weekend and gave
16 to the Defence, the ones regarding the dates 22nd to 31st of August.
17 MS. REGUE: If we could go to the first page, please.
18 Q. I believe that you testified -- it's in tab 15. Sorry, sir. Tab
19 15 of your binder.
20 A. Tab 15. I only see an English version.
21 Q. Can you work, sir, with a computer, with the screen? Thanks.
22 Sir, you testified that actually this first page was the receipt
23 where the bookkeeper paid to the bank the amount that the customer had
24 paid. Do you see this signature of Mr. Hutsch in this piece of paper,
1 A. No, I don't see it. It is not necessary for Mr. Hutsch to have
2 his signature here. When you go to a cafe and you pay in cash, surely you
3 don't sign anywhere.
4 MS. REGUE: Could we please go to the second page.
5 Q. It's a bit blur in the screen, sir.
6 This is the computer -- you testified that this is the computer
7 report. Do you see the signature of Mr. Hutsch in here?
8 A. Mr. Hutsch's signature is also not to be found here.
9 MS. REGUE: Could we go to the last page of this exhibit.
10 Q. You testified, sir, that this was the bill. Do you see the
11 signature of Mr. Hutsch in here?
12 A. Yes, this was the bill which we had to buy and give at that time.
13 We don't have such bills anymore. And here also we don't have the
14 signature of Mr. Hutsch.
15 Q. So, sir, we, indeed, cannot be certain that these bills refer to
16 Mr. Hutsch, can we? His signature is not to be seen anywhere.
17 A. Perhaps you are not sure, but I am sure, because this guest came
18 with such an ID.
19 Q. Sir, I'm putting to you that the method of recording the entries
20 and departures of the foreign guests in 2001 was unreliable and it was
21 therefore possible that omissions or mistakes might have been made with
22 regards to the entries in the foreign guest book in 2001. Would you agree
23 with me, sir?
24 A. This is your opinion, madam. Mine is not the same. I have no
25 indications that I have made a mistake anywhere.
1 Q. Thanks.
2 MS. REGUE: Your Honour, I have no further questions.
3 JUDGE PARKER: Thank you.
4 Mr. Mettraux, is there any re-examination.
5 MR. METTRAUX: Very briefly, Your Honour.
6 Re-examination by Mr. Mettraux:
7 Q. Good afternoon, Mr. Dimitrov. I have a few question for you. Do
8 you recall that my colleague this afternoon asked you a number of
9 questions about possible mistakes and omission that could be done by the
10 night guard that could, in turn result in mistakes and omission in the
11 recording of the guests.
12 Do you recall those questions?
13 A. Yes, I do recall.
14 Q. And do you recall also the suggestion that was made by my
15 colleague that you did not, yourself, personally verify the guest book to
16 ensure that the information contained therein was accurate.
17 Do you recall that question?
18 A. Yes, I recall.
19 Q. Did you review by any chance your -- the record of your invoices
20 for the month of August of 2001 to see whether any invoices related to
21 Mr. Hutsch?
22 A. Yes, I did review them.
23 Q. And aside from the invoice that was just shown to you by my
24 colleague which covered the 22nd to the 31st of August of 2001, was there
25 any other invoice that related to Mr. Hutsch for the month of August of
2 A. I did not succeed in finding any other bill for the person Hutsch
3 for the period of August 2001.
4 Q. And just a moment ago my colleague was asking you about steps
5 taken by the police, I think you said the alien police or the foreign
6 police of the Ministry of Interior to verify your guest book. Could you
7 give a general indication as to how often -- how often the foreign or
8 alien police of the MOI would come to your hotel to look into your book?
9 A. I cannot interfere how often and when the police will come. They
10 come at their own finding. Sometimes it's two times a week; sometimes
11 it's two times a month; sometimes it is less frequently. It is up to
12 them. I have no influence on this matter.
13 MR. METTRAUX: Perhaps with the assistance of the usher.
14 Q. Can you recall, Mr. Dimitrov, that my colleague asked you a number
15 of questions about the appearance of these two books, the guest books that
16 you have there?
17 Do you recall those questions?
18 A. Yes, I recall.
19 Q. Perhaps as an introductory question, it may be obvious, but do
20 those books get used, get worn out when you use them?
21 A. Of course.
22 Q. And, again, perhaps an obvious question, but do they get more used
23 the more you use them?
24 A. This is correct. The more they're used, the more used they
25 became. Same as clothing.
1 Q. And is it correct that the first book, the first book that you
2 opened for the bed and breakfast, covered a period of time of
3 approximately nine or nine and a half month from the 23rd of May of 2001
4 to the 8th of March of 2002. Is that correct?
5 A. Yes, this is absolutely correct.
6 Q. And is it correct that by contrast the second book was used for a
7 period of two years or approximately 24 months from the 8th of March of
8 2002 until the 1st of March of 2004. Is that correct?
9 A. This is correct. 27th February. Yes, a couple of days
11 Q. And would it be correct or would it be fair to suggest that a book
12 that has been used for more than twice as long would, all things being
13 equal, be more worn out than the other book? Would that be a fair
15 A. You're very clearly suggesting in fact something which is evident,
16 something which is used in the period on a daily basis for two years will
17 not be in the same condition as something used for a lesser period of time
18 within one year.
19 Q. I'm grateful, Mr. Dimitrov.
20 MR. METTRAUX: Your Honour, that is all.
21 JUDGE PARKER: Thank you, Mr. Mettraux.
22 Mr. Dimitrov, that concludes the --
23 Ms. Regue.
24 MS. REGUE: Your Honour, my apologies. I forgot to tender a
25 couple of documents during my cross-examination. Could we now after the
1 witness --
2 JUDGE PARKER: We will attend with the witness and then return to
4 We would like to thank you for your attendance. Your questioning
5 has concluded. You are now able to return to your normal affairs. Thank
6 you. And the court officer will show you out.
7 THE WITNESS: [Interpretation] Thank you, Your Honours.
8 [The witness withdrew]
9 [Trial Chamber confers]
10 JUDGE PARKER: Ms. Regue.
11 MS. REGUE: Your Honours, I would like to tender, I will seek to
12 tender the Law on Movement and Residence of Foreigners, which was Rule 65
13 ter 1217, which was in tab 13 of your binders.
14 [Trial Chamber confers]
15 JUDGE PARKER: The only relevance -- is the only relevance that
16 there was a period prescribed of two years?
17 MS. REGUE: Yes, Your Honour, that was in Article 73 --
18 JUDGE PARKER: That's clearly in the transcript. I'm just -- I
19 don't quite see why we need the whole law.
20 MS. REGUE: I was going to suggest only Article 73 but if you do
21 not believe that the transcript is enough.
22 JUDGE PARKER: I think that is clear enough in the transcript.
23 MS. REGUE: And then, Your Honour, the second document will be
24 Rule 65 ter 1214, which is tab 9. This document, Your Honour, is a full
25 copy of the first guest book that this witness gave to the investigator,
1 Thomas Kuehnel, when he went to see him in Skopje and it covers the whole
2 period from May 2001 and March 2002.
3 JUDGE PARKER: It will be received.
4 THE REGISTRAR: As Exhibit P594, Your Honours.
5 MS. REGUE: And finally, Your Honour, tab 10 which is Rule 65 ter
6 1213 which is a partial copy of the guest book of the hotel. It's a part
7 of the second guest book which goes from March 2002 until June --
8 JUDGE PARKER: And what is the relevance of that apart from a
9 change in form of entry?
10 MS. REGUE: That was basically the relevance, Your Honour.
11 JUDGE PARKER: And isn't that dealt with enough in the questioning
12 on the transcript?
13 MS. REGUE: Yes, Your Honour.
14 JUDGE PARKER: I think only tab 9.
15 MS. REGUE: Thanks, Your Honour.
16 JUDGE PARKER: Thank you, Ms. Regue.
17 As I understand it, Ms. Residovic, or Mr. Mettraux, that is the
18 last witness to be called. Is that correct?
19 MS. RESIDOVIC: [Interpretation] Yes, Your Honours. This was the
20 last witness of the Defence of Mr. Boskoski. We also submitted a request
21 for withdrawal three witnesses from the list. We also informed the
22 Chamber about several other issues that we would like to settle before we
23 conclude our evidence list.
24 First --
25 JUDGE PARKER: Before you move on, I'm concerned about time and
1 Mr. Apostolski. Can you tell me how long you anticipate these matters
2 that you are now turning to will take?
3 MS. RESIDOVIC: [Interpretation] Your Honours, I think we can
4 finish within this session.
5 JUDGE PARKER: Well, if you would excuse me a moment.
6 Mr. Apostolski, your opening, how long would you anticipate?
7 MR. APOSTOLSKI: [Interpretation] Good afternoon, Your Honours.
8 I believe I will need at least an hour and a half for my opening
10 MS. RESIDOVIC: [Interpretation] Your Honours, maybe after the
11 completion of the opening statement we can proceed with our affairs, so
12 that our learned colleague could finish with his opening statement today.
13 JUDGE PARKER: Mr. Apostolski, if we allowed you an hour and a
14 half, are you comfortable that you would finish in that time? It's
15 important for your opening. We don't want to impede you.
16 MR. APOSTOLSKI: [Interpretation] Your Honours, approximately it
17 would take an hour and a half. I couldn't really strictly determine the
18 time that I might need.
19 JUDGE PARKER: Thank you, Mr. Apostolski.
20 Ms. Residovic, can you conclude the matters you have in mind in 20
22 MS. RESIDOVIC: [Interpretation] Yes, Your Honours. This is a
23 summary of the remaining 92 bis statements that will be given by
24 Mr. Mettraux.
25 JUDGE PARKER: Thank you. Could we mention now that you may have
1 leave to remove the three witnesses from your list.
2 And now we turn to Mr. Mettraux.
3 MR. METTRAUX: Thank you, Your Honour. And perhaps before I
4 engage into the reading of the summaries of the 92 bis, there was a very
5 brief matter which we wanted to bring to the attention of the Chamber and
6 I understand that Mr. Saxon wished to state something to the same matter
7 and I will do that as briefly as I can.
8 Your Honour remember that on the 14th of February the Prosecution
9 responded to an application by the Defense for a motion from the bar
10 table. I believe yesterday or two days ago we were informed by the
11 Prosecution upon a specific request we had directed to them whether or not
12 the Prosecution had subjected or requested that the intercepts which were
13 the subject of this motion to any testing. The Prosecution at that point
14 informed us that they had in fact sent the material for testing to the
15 Dutch forensic laboratory. This information was not contained in the
16 Prosecution response nor was the fact, Your Honour, that contrary to the
17 indication that was given in the Prosecution response had the Defence
18 refused to give the original.
19 Simply to state the matter as clearly and simply as we can, the CD
20 in its original format which we have contained not only the intercept in
21 question but other material which was given to us pursuant to Rule 70. We
22 therefore gave the indication to the Prosecution that unless they would be
23 able to give us an indication that the expert was unable to test the copy
24 of that material as opposed to the original, we would prefer to stay with
25 the original.
1 The Prosecution did not give us an indication that the expert was
2 unable to test the copy. And we've indicated that we are willing to
3 review or reconsider our position should the Prosecution in the meantime
4 tell us that the expert was encountering any difficulty in this testing.
5 We don't have any such indication and this is why our position remained
6 the same, but more importantly, Your Honour, is the fact --
7 JUDGE PARKER: You're wanting an expert to test, or the
8 Prosecution is, electronic recordings of intercepts.
9 MR. METTRAUX: Well, in fact, Your Honour, we understand we had
10 indicated to the Prosecution that they have the CD because we made a copy
11 for them at the time and the Prosecution --
12 JUDGE PARKER: The point is you have the original.
13 MR. METTRAUX: That's correct, Your Honour.
14 JUDGE PARKER: Can I tell you it doesn't need any great knowledge
15 of technology to know that each copy is less reliable and accurate than
16 the original. Why is the difficulty about having the original?
17 MR. METTRAUX: The difficulty, Your Honour, was the fact that the
18 original contained other material which we have been provided under Rule
19 70 and that we did not wish to disclose on that. If we withdrew the
20 material from that particular CD, the CD would not be original. We also
21 understand from our own discussion with the people from the laboratory in
22 The Netherlands here that they are in fact able to test the material in
23 question in its copied format.
24 JUDGE PARKER: You can test anything. The question is how
25 reliable is the result.
1 MR. METTRAUX: Your Honour, in this particular instance I can only
2 await the results by the forensic institute which we understand will be
3 forthcoming this week. The indication we got in relation to the material
4 and having described to them the specific CD was that they would be indeed
5 able to test it.
6 JUDGE PARKER: Are you saying, Mr. Mettraux, that you want the
7 Chamber to hold its decision --
8 MR. METTRAUX: That's correct, Your Honour.
9 JUDGE PARKER: -- which is imminent.
10 MR. METTRAUX: Until that time when the Prosecution received the
12 JUDGE PARKER: Thank you, Mr. Mettraux.
13 Mr. Saxon, anything to say.
14 MR. SAXON: I was going to make the same request, Your Honour,
15 that the Chamber simply hold its decision in abeyance until we receive a
16 report from The Netherlands Forensic Institute, which has been promised to
17 us no later than the 10th of March.
18 JUDGE PARKER: Thank you.
19 [Trial Chamber confers]
20 JUDGE PARKER: Mr. Mettraux, you are been successful.
21 MR. METTRAUX: For once.
22 JUDGE PARKER: Oh, many times, many times, Mr. Mettraux.
23 MR. METTRAUX: Well, Your Honour, if I may, I will now turn to the
24 summaries of the Rule 92 bis statement of the Defence witnesses and I will
25 start with the summary of the statement of Dr. and Excellency Srgjan
2 His Excellency Dr. Srgjan Kerim is a citizen of the Republic of
3 Macedonia. In the year 2001, Dr. Kerim served as foreign minister of the
4 Republic of Macedonia and subsequently as ambassador of the Republic to
5 the United Nations. In those capacities he became acquainted with
6 Mr. Boskoski. Dr. Kerim is currently the president of the General
7 Assembly of the United Nations. In his statement, Dr. Kerim describes the
8 strain which the attacks of the NLA put on all state resources and the
9 efforts of the Macedonian government and state institution to perform
10 their duties under and despite those circumstances.
11 Dr. Kerim explained that as minister, Mr. Boskoski inherited
12 institution that were in the process of maturation and reform, thus
13 rendering the functioning of the government responsibilities more
14 challenging and difficult.
15 Dr. Kerim explains and describes the process of integration of
16 members of various ethnic minority into state organs, a process that had
17 started before the beginning of the NLA attacks.
18 The process was also taking place in the Ministry of Interior
19 under the ministership of Mr. Boskoski. Dr. Kerim states that it was the
20 position of the international community at the time that the NLA was a
21 criminal and terrorist organisation. He points out, in particular, that
22 to his knowledge, no one single state member of the United Nations ever
23 suggested at the Security Council or at the General Assembly of the United
24 Nations that an armed conflict was taking place in Macedonia in 2001 or
25 2002. Nor does he know of any state member of the UN having supported the
1 NLA or the Macedonian authority as parties to an armed conflict.
2 Dr. Kerim outlines that in 2001 the crisis in Macedonia was
3 regarded as a matter of policing and anti-terrorism. Dr. Kerim explains
4 that the purpose of the state organs at the time was to defend the
5 multi-ethnic nature and territorial integrity of the country and to shield
6 this democracy from the attack of the so-called NLA.
7 Dr. Kerim who knew Mr. Boskoski describes him as a man of moral
8 integrity, a man who as a minister sought to fulfil his duties to the best
9 of his abilities and those of his ministry.
10 The next summary, Your Honour, is that of Mr. Slobodan Casulev.
11 Mr. Slobodan Casulev is a Macedonian citizen who over the years served his
12 country as a diplomate, as a Member of Parliament and as foreign minister.
13 Mr. Casulev testifies to the good character of Mr. Boskoski. He also
14 testified to the great challenges that he and Mr. Boskoski as government
15 ministers met in the years 2001 and 2002 to fulfil their mandates and
17 Mr. Casulev commends Mr. Boskoski for his ability to guarantee and
18 oversee internal stability and security through the enforcement of the
19 Ohrid Framework Agreement. This was a pre-condition and the basis for
20 successful return to peaceful civil society in Macedonia.
21 Mr. Casulev testifies to Mr. Boskoski's cooperation with the
22 international community and his efforts to contribute to the
23 implementation of the Ohrid Framework Agreement. Mr. Casulev knows
24 Mr. Boskoski to be free of ethnic prejudice and to be liked and admired as
25 a political figure in Macedonia.
1 He also knows him to be an honest highly ethical man, a loving
2 father, and a loyal friend.
3 The next summary, Your Honour, is that of Mr. Aleksandar
5 Mr. Milosevic is a Croatian citizen and a journalist by
6 profession. He served in his country, Croatia as an ambassador in the
7 Republic of Macedonia from January of 2001 until November of 2005. He
8 knows Mr. Boskoski both as a state official and as a friend. He describes
9 how ambassadors and other state officials would gravitate around
10 Mr. Boskoski and characterises his contact with such persons as open and
11 friendly. Mr. Milosevic knows of Mr. Boskoski to be free of ethnic or
12 political bias and prejudice, as a patriot who sought to use his office to
13 protect the milti-ethnic and democratic nature of his country.
14 Mr. Boskoski talked of his Albanian friends and his hopes that all
15 citizens of the country could regard Macedonia as their common fatherland.
16 Mr. Milosevic describes Mr. Boskoski as a patriot, a man who
17 viewed the multi-ethnic character of his country and his various religious
18 credes as strengths and treasures to be preserved.
19 As a representative of the international community in Macedonia in
20 2001, Mr. Milosevic did not believe the various justifications advanced by
21 the NLA to legitimise their activities.
22 He also highlights the fact that the international community never
23 supported the changing agenda of the NLA or their claim of institutional
25 He points out that the reform that were intended to improve the
1 position of minorities in the country were slowed down by the NLA attacks
2 rather than facilitated.
3 Mr. Milosevic made it clear from that his discussion with the
4 prominent Albanian political leader the reason for the NLA attacks was the
5 perception that the borders of the former Yugoslavia had not yet
6 solidified. He says that NLA attacks were about territory and control
7 over that territory. Mr. Milosevic also knew of Mr. Boskoski's view that
8 all outstanding problems in the republic should be resolved politically,
9 not through violence.
10 He also knows that Mr. Boskoski strived to carry out his duties as
11 minister in accordance with the laws and constitution of his country while
12 trying to satisfy the various demands that the international community
13 placed upon Macedonia at the time.
14 Among the various contributions that Mr. Boskoski made to that
15 process, Mr. Milosevic mentions the efforts made by Mr. Boskoski to
16 implement the process of reform of the police, the peaceful return of
17 those forces to conflict areas, the integration of ethnic minority into
18 the police forces and generally to ensure the implementation of the Ohrid
19 Framework Agreement.
20 THE INTERPRETER: The interpreters kindly ask the counsel to slow
22 MR. METTRAUX: The last summary, Your Honour, is that of
23 Ms. Nevenka Mikac.
24 Ms. Nevenka Mikac is a citizen of the Republic of Macedonia and a
25 friend of the family of Mr. Boskoski. She knows and describes the family
1 of Mr. Boskoski as a closely knit and loving family, and Mr. Boskoski as a
2 father of three. Kate, a law student, Pance a high school student and
3 Phillip, his 13-year-old son and a primary school student. Ms. Mikac
4 described Mr. Boskoski to be free of ethnic or religious prejudice, a man
5 of tolerance and generosity who from the modest background of his family
6 became a successful business man and later a politician.
7 As a minister Mr. Boskoski remained the modest, honest, moral and
8 fair man who Ms. Mikac knew as a friend, a loving father and a husband.
9 Thank you.
10 JUDGE PARKER: Thank you, Mr. Mettraux.
11 MR. METTRAUX: And I believe, Your Honour, that we should formally
12 seek to tender those statement at this stage.
13 JUDGE PARKER: Yes, the four statements will each be received.
14 THE REGISTRAR: Your Honours, statement of witness Kerim will
15 become Exhibit 1D334. Witness statement of Mr. Milosevic will become
16 Exhibit 1D335. Witness statement of Mr. Casulev will become Exhibit
17 1D336. And the last statement of witness Mikac will become Exhibit 1D337.
18 JUDGE PARKER: Thank you very much.
19 Ms. Residovic.
20 MS. RESIDOVIC: [Interpretation] Your Honours, there are several
21 other issues for which we would request the Chamber to make a decision.
22 You know that yesterday, to the witness Popovski I showed an
23 article from the Criminal Code of the Socialist Federative Republic of
24 Yugoslavia and since other articles from this code were entered into
25 evidence, in accordance with your suggestion, we, this part of the
1 Criminal Code of the Socialist Federal Republic of Yugoslavia, have
2 translated under number 65ter 1D1322, and we would ask that the document
3 that was registered under 1D329 MFI is accepted as evidence.
4 JUDGE PARKER: With the translation.
5 MS. RESIDOVIC: [Interpretation] Yes.
6 JUDGE PARKER: It will be received.
7 THE REGISTRAR: It will become Exhibit 1D329, Your Honours.
8 JUDGE PARKER: Thank you.
9 MS. RESIDOVIC: [Interpretation] During the testimony of Witness
10 Vesna Dorevska, admitted into evidence was a decision for employment of
11 Goran Mitevski, in UBK. That was signed by minister of the interior
12 affairs Dosta Dimovska. This exhibit was given the number 1D308. At that
13 moment there was no translation. Now we have a translation that was
14 uploaded in the e-court under the number 1D01-0600 and we would seek to
15 tender this document into evidence.
16 JUDGE PARKER: It will be received.
17 MS. RESIDOVIC: [Interpretation] Your Honours --
18 JUDGE PARKER: Just a moment, Ms. Residovic, yes.
19 [Trial Chamber and registrar confer]
20 JUDGE PARKER: More accurately the translation will now be added
21 to the existing exhibit. Yes.
22 MS. RESIDOVIC: [Interpretation] Thank you.
23 Your Honours, on several occasions we spoke about the problems
24 with the translation and in reference to a large document which is the
25 exhibit P96, together with the CLSS, there was a revision of the whole
1 document, and the CLSS submitted to the Defence a revised translation that
2 was uploaded under the ID number 1D01-0539, and 1D01-0499.
3 We seek to -- to replace -- we seek that these two translations
4 replace all other draft translations of this document, with the exception
5 of the part of the translation that is number 1D10-0138 [as interpreted].
6 JUDGE PARKER: Frankly, it is not clear to me what the
7 substitution would do in every case, because there has been some
8 questioning on earlier translations.
9 So what I would propose is to receive this new translation as the
10 authoritative translation with its own distinct exhibit number.
11 MS. RESIDOVIC: [Interpretation] Yes, Your Honours. Just in this
12 exhibit, P96, we suggest that the official revised CLSS translations are
13 accepted and that they substitute all of the existing translations that
14 were attached to this exhibit with the exception of the part that is
15 registered 1D01-1318, because this was not the revised part.
16 JUDGE PARKER: That is too confusing for me at this stage,
17 Ms. Residovic. We will receive the whole of the revised translation of
18 exhibit P96 as a new exhibit.
19 [Trial Chamber and registrar confer]
20 THE REGISTRAR: The translation will be admitted as exhibit P96.1,
21 Your Honours.
22 MS. RESIDOVIC: [Interpretation] Thank you.
23 And in the end, Your Honours, witness Kristo Zdravkovski, as
24 evidence were accepted exhibits 1D319 and 1D320, which were two large
25 criminal reports that were submitted in Bitola. Before the arrival of the
1 witness we requested from CLSS to translate these two documents in whole,
2 but due to their length, CLSS refused to do the translation and requested
3 from the Defence to point out only the relevant parts. These were
4 criminal reports against 102 persons, against 140 deeds or criminal acts
5 that were committed, and therefore it was impossible to extract the most
6 relevant parts, because each part contained the name of the perpetrator
7 and the description of the deed.
8 The Defence made a translation of these criminal reports and we
9 would request from the Chamber to accept the translations of these
10 criminal reports and in case our learned colleagues from the Prosecution
11 have any objections we can request additional translations of this
13 [Trial Chamber confers]
14 JUDGE PARKER: We propose, Ms. Residovic, that this be the subject
15 of a written motion, that there be discussion by you with the Office of
16 the Prosecutor or with Mr. Saxon, whether there is any concern about the
17 translation, and it may be that if there is a concern about a particular
18 part, that can be put to CLSS. But it may be that there is no concern
19 about any material part.
20 But we will deal with it on a written motion in the fullness of
22 MS. RESIDOVIC: [Interpretation] Thank you very much, Your Honour.
23 As regards the other translations that we're going to receive in
24 the CLSS, we are going to act in accordance with the standard directions
25 that were given to us by the Chamber.
1 And, Your Honours, you know that we have several unsolved and
2 pending requests and taking that into consideration, the Defence of
3 Mr. Boskoski would like to announce that it completed its presentation of
5 JUDGE PARKER: Thank you very much, Ms. Residovic.
6 Subject to what I believe are now three motions, one of which was
7 received yesterday, and to this written motion which we have just
8 indicated should be proceeded with, and to any other motion concerning an
9 outstanding issue of translation, subject to those matters, the Defence of
10 Mr. Boskoski is closed. And we thank you for the expedition that you have
11 given to that Defence.
12 MS. RESIDOVIC: [Interpretation] Thank you very much.
13 JUDGE PARKER: We will adjourn now and resume at a quarter past
14 4.00. And we must rise by 6.00. That will give you over an hour and a
15 half, Mr. Apostolski.
16 We adjourn now.
17 --- Recess taken at 3.45 p.m.
18 --- On resuming at 4.15 p.m.
19 [Trial Chamber confers]
20 JUDGE PARKER: Mr. Tarculovski, your Defence is about to be opened
21 by Mr. Apostolski.
22 Thank you, Mr. Apostolski.
23 [Tarculovski Defence Opening Statement]
24 MR. APOSTOLSKI: [Interpretation] Good afternoon, Your Honours.
25 Your Honours, Honourable President of the Chamber, learned
1 colleagues from the Prosecution and the Defence of Mr. Boskoski, pursuant
2 to Rule 84 of the Rules, the Defence of Johan Tarculovski is making this
3 opening statement. The goal of this opening statement will be to
4 summarize the case that the Defence of Johan Tarculovski will present
5 before this Chamber. It will also make several conclusions of the cases
6 presented by the Prosecution and the Defence of Ljube Boskoski.
7 Your Honours, the Defence of Johan Tarculovski is privileged to be
8 making the statement after the presentation of both cases, so that it has
9 had at its disposal almost all the facts that will be the basis for a just
10 verdict by the Trial Chamber.
11 The Defence will limit its case just to additionally confirm and
12 corroborate facts that have already been proven in the Prosecution and
13 Boskoski case.
14 Having heard the Prosecution's case, the Defence had serious
15 doubts whether to have a Defence case at all, because it is completely
16 persuaded that the Prosecution has not proven the responsibility of the
17 accused Tarculovski on any of the basis charged in the indictment. Only
18 on the basis of the Prosecution witnesses the Trial Chamber will be able
19 to reach a just verdict, which is to acquit the accused Tarculovski.
20 Notwithstanding, as I have already mentioned we will have a very limited
21 Defence case consisting of eye-witnesses of the events that happened in
22 the village of Ljuboten before and during 12th August, 2001 and one
23 military expert who, during 2001 was the spokesperson of the Macedonian
24 army and is considered as one of the most relevant scholars in the field
25 of military as a whole in Macedonia.
1 I will commence the Defence with opening remarks and a discussion
2 regarding the existence of an armed conflict in the Republic of Macedonia
3 during 2001. Then I will continue with events that occurred in and
4 around the village of Ljuboten between the 10th and 12th of August, 2001,
5 and will finish with the alleged criminal responsibility of the accused
6 Johan Tarculovski.
7 I will begin with the issue of an armed conflict, because this is
8 a jurisdictional pre-condition and because the findings of this Chamber is
9 of historic importance for history and the general public in Macedonia.
10 In order to determine the existence of an armed conflict, the
11 Prosecution has to prove that there was sufficient organisation and
12 structure of armed forces, such that each participating force has the
13 ability to carry out military operations. It is not sufficient for a
14 group to claim to be organised or to give an appearance that it has a
15 degree of organisation. The standard, under international law, is truly a
16 much more demanding one. The Prosecution has not established that the
17 so-called NLA met the standards relevant to international law in this
18 regard. The Prosecution must demonstrate that the intensity of the armed
19 violence rose to a level that exceeds that of mere banditry, common crime,
20 or a disorganised or short-lived insurrection or terrorist activities
21 which are not subject to international humanitarian law.
22 Determination of the intensity of a conflict and the organisation
23 of the parties are factual and legal matters which need to be decided upon
24 in light of particular evidence and on a case-by-case basis. One of the
25 factors for assessing the intensity of the conflict which the Trial
1 Chamber must take into consideration is the seriousness of the attacks,
2 and whether there had been an escalation of armed clashes, the dispersion
3 of the clashes over territory and over a period of time, an increase in
4 the number of government forces and mobilisation and the distribution of
5 weapons among both parties to a conflict, as well as whether the conflict
6 has attracted the attention of the United Nations Security Council and
7 whether a resolution has been passed in this regard.
8 With respect to the organisation of the parties to the conflict,
9 it must be taken into account factors such as the existence of
10 headquarters, designated zones of operation, and the ability to procure,
11 transport, and distribute arms.
12 Your Honours, as it was seen during the Prosecution case and will
13 be proven during the Defence case, the so-called NLA was nothing but a
14 group of terrorists in the eyes of the whole international community. The
15 so-called NLA was a typical terrorist organisation as defined in all world
16 definitions of terrorism. The so-called NLA were a group of criminals
17 that used violence to intimidate Macedonia and its citizens with the goal
18 of achieving their political goals, and that is the creation of a Greater
19 Albania. There has never been a conflict been Albanians and Macedonians.
20 There was only a criminal attempt made by a terrorist armed group to
21 destroy the constitutional order of Macedonia with a view of creating a
22 territory that they would control. We urge the Trial Chamber not to
23 create a fraction that has never existed or existed only in the minds of
24 the so-called NLA and to consider them as a party to an armed conflict,
25 same as the security forces. There is no valid legal precedent that would
1 support the Prosecution case and the world never recognised this events in
2 Macedonia as an armed conflict nor will it start doing this now.
3 Your Honours, the Republic of Macedonia was the only Yugoslav
4 republic that achieved its independent from Yugoslavia in the 1990s
5 through peaceful means, thanks to its wise people and leaders. After the
6 Kosovo crisis in 1999, whereby Macedonia rescued and provided shelter,
7 food, water, medical relief to over 300.000 Kosovo Albanians, some members
8 of the Kosovo Liberation Army that remained jobless decided to use the
9 Kosovo border in order to conduct terrorist attacks against Macedonia so
10 that they destabilized the country, in order to separate the part of
11 Macedonia inhabited by ethnic Albanians and unite this with Kosovo and all
12 with a view to achieving the ultimate goal, the creation of a Greater
14 As the honourable American diplomate Mr. Christopher Hill once
15 said, I quote: "We spent the 1990s worrying about a Greater Serbia.
16 That's finished. We're going to spend time well into the next century
17 working about a Greater Albania."
18 Macedonia was then and continues to be the country of all
19 Macedonians, regardless of ethnicity. The NLA was the only group that
20 ever opposed this reality. This is what the general secretary of NATO,
21 His Excellency Lord Robertson, said about the NLA as well as the security
22 chief of the European Union, Mr. Javier Solana. I point to Exhibit 2D69.
23 This is also what the British government, through its ambassador, said
24 about the NLA, reflecting the position of the overall international
1 If we could now look at video-clip 2D71.
2 [Videotape played]
3 MR. APOSTOLSKI: [Interpretation] I believe we are experiencing
4 technical difficulties. If we could go to the beginning of this clip.
5 JUDGE PARKER: I notice on my screen at the right-hand top there
6 is shown a speed reverse. That may have been causing a problem.
7 MR. APOSTOLSKI: [Interpretation] I believe it is fine now.
8 I will be but a moment, Your Honours. There seems to be some
9 technical difficulties.
10 [Defence counsel confer]
11 [Videotape played]
12 MR. APOSTOLSKI: [Interpretation] Your Honours, this was the
13 video-clip Exhibit 2D71.
14 Your Honours, as it was proven during the Prosecution case and
15 will be shown during the Defence case, the so-called NLA did not have
16 organisational capacities. The so-called rule books that the Prosecution
17 presented as evidence for the organisation were nothing more but a
18 copy/pasted rule books of the Kosovo Protection Corps, and its authors did
19 not even bother to change the name from Kosovo to Macedonia. There's no
20 reliable evidence that these rules were ever implemented, and even if they
21 had been, that they had had any impact or relevance on the functioning of
22 the so-called NLA. These regulations were a propaganda tool to give a
23 criminal organisation the appearance of a military body. As the so-called
24 chief of General Staff of the NLA, Gzim Ostreni, testified that he did not
25 even know whether the headquarters were in Selce, Sipkovica, or Prizren in
1 Kosovo. Did he not know the number of his forces, what kind of
2 communications they used, and so forth. Even the so-called chief of the
3 General Staff of the NLA did not issue even a single order, as he
4 testified. This proves that the organisation of the so-called NLA was
5 imaginary and for purposes of presenting the NLA as not being a terrorist
7 Your Honours, the so-called NLA did not have the ability to
8 conduct any kind of serious attack on the Macedonian forces. They could
9 not do so because they neither had the organisation to do so, nor the
10 structure, nor logistics of their forces. They committed criminal attacks
11 that only a small group of criminals can do. The only thing they were
12 able to do was to ambush convoys or plant mines on normal roads used by
13 everyone and then to retreat either back to Kosovo or in some villages
14 inhabited by Albanians. Such ambushes were carried out by no more than 10
15 to 15 terrorists at a time. They never lasted more than several minutes.
16 The problem of the Macedonian security forces then was to search and
17 destroy the terrorists, because they would hide in Albanian villages, hid
18 their uniforms, and became innocent civilians. This was the tactics that
19 the NLA was successful in implementing, the only one they were successful
20 in implementing. The problem of the Macedonian security forces was that
21 they were too careful not to target civilians. Even they knew that there
22 are terrorists hiding from the Macedonian security forces, as a result of
23 which they would hesitate to attack.
24 Your Honours, the so-called NLA never held any territory. They
25 would suddenly appear in some mountain villages populated with Albanians.
1 They would come out to have a photo taken and would disappear. On several
2 occasions when they confronted the security forces, like in Tetovo, in
3 March 2001, in Vaksince in May 2001, in Aracinovo in June 2001, and
4 Ljuboten in 2001, they withdrew and be destroyed. What the Prosecutor
5 describes as control of territory was nothing but a rule of fear and
6 violence by expelling non-Albanians and frightened the Albanians who did
7 not support them. It would be a terrible precedent if such criminal
8 activities were to form the grounds of finding of this Court that an armed
9 conflict existed.
10 The violence was spread only on the territory that was bordering
11 Kosovo. The terrorists did not have the capacity to make a coordinated
12 action even in this territory. The whole episode of events lasted for
13 only four to five months without any terrorist activities in the month of
14 April 2001.
15 Your Honours, the goal of these criminals was to separate the
16 territory of Macedonia and to unite it with Kosovo. This goal failed.
17 The Macedonian security forces succeeded in defending Macedonia and for
18 the first time in the modern Macedonian history they succeeded in
19 defending its territory from being chunked away by its neighbours.
20 Now I would like to move to the events in Ljuboten.
21 During the crisis, the village of Ljuboten was used as an
22 important logistic place for the so-called NLA. The presence of the NLA
23 in the village occurred long before these events and continued long after
24 these events. As numerous witnesses of the Prosecution witnessed,
25 Ljuboten was used to smuggle arms, food, and medicines for the need of the
1 NLA, especially for those that were stationed in the Kumanovo region and
2 the village of Matejce.
3 Your Honours, well before the crisis started in 2001 and after the
4 signing of the Ohrid Agreement, the Albanian armed groups were present in
5 the village of Ljuboten. What the Prosecution is trying to say is that
6 although there were armed Albanian activities in Ljuboten before and after
7 the events, magically no such presence was registered during that
8 weekend. That simply is not reasonable and is contrary to the evidence.
9 There had always been an armed presence of the NLA in the village. Due to
10 the strategic importance the NLA decided not to raise the flag but to
11 remain under covert control. The Macedonian security forces were aware of
12 this situation, and in June 2001 the army surrounded the village of
13 Ljuboten, in order to be able to put it under its observation or, to use
14 the army terminology, to be on a higher level, if something happens.
15 Now, I would like to quote Exhibit 1D31, which is the standard
16 operating procedure on the OSCE Monitoring Mission. Start of quote: "The
17 modus operandi of the ethnic Albanian armed groups by and large is to
18 occupy ground by infiltrating requiring a great deal of preparations
19 before overtly declaring areas under their control. These preparations
20 include the insertion of supplies, arms, and equipment as well as
21 preparation of the local inhabitants to be receptive to their emergence.
22 Therefore, there are a number of indicators, the hardening of the local
23 population's attitude to the government, lots of young men hanging around
24 looking suspiciously or the noticeably enhanced security stance of
25 Macedonian forces in the area which could suggest that an area is being
1 prepared to be taken over or is ready. The sudden exodus of women and
2 children from the village is also a strong indicator that the activity of
3 the armed groups of ethnic Albanians is imminent. Normally, these
4 preparations are done in the regions where there is a significant
5 population of ethnic Albanians."
6 In June 2001, the so-called NLA decided to try to conduct
7 terrorist attacks on the capital of Skopje. First, the NLA occupied the
8 village of Aracinovo and threatened to shell its refinery, the airport,
9 and the parliament; Exhibit 2D37 and 2D38, however, with a swift operation
10 and NATO assistance they were neutralised. Then the NLA infiltrated two
11 groups clad as civilians in the city of Skopje in order to start street
12 fights which is Exhibit 2D41. Some of the members of the NLA that were
13 dressed in civilian clothes were caught and neutralized by the Macedonian
14 security forces taking shelter in Albanian houses in the suburb of Cair
15 which is one kilometre away from the city centre. Exhibit P364.
16 Since the village of Ljuboten was surrounded by Macedonian forces
17 the NLA main forces from the Lipkovo area were unable to enter the
18 village. In addition to the situation the destruction of the existing
19 supply channels of the armed Albanian extremists in the area of Nikustak
20 and Matejce where the departure of the security forces from the
21 check-points would have allowed an uninterrupted passage of armed groups
22 from the area of Nikustak and Matejce and the emerging with the groups of
23 armed Albanian extremists in the area of Radusa, which is why, on the 10th
24 of August, 2001, the villagers of Ljuboten who were members of the NLA led
25 by Shefajet Bajrami, the brother of the deceased Sulejman and Xhelal
1 Bajrami, planted two mines on the outgoing shift of soldiers that were
2 stationed above the village of Ljuboten, which resulted in the death of
3 eight innocent Macedonian reservist soldiers.
4 On the same date, a battalion of the NLA from Lipkovo received
5 orders to enter the village of Ljuboten. The Macedonian army intelligence
6 units, on the 10th of August, at the 1655, intercepted the information and
7 passed it through the chain of command; Exhibit 2D42. At the same time,
8 the villagers of Ljubanci and Radisani, afraid that they would be attacked
9 next, demanded weapons to be able to defend themselves. On the 10th of
10 August, 2001, immediately after the mine incident, the army stationed at
11 the position above Ljuboten noticed several NLA members wearing black
12 uniforms and entering the village of Ljuboten from the direction of
13 Ljubotenski Bacila and they opened machine and sniper fire, which resulted
14 with the death of at least two terrorists and retreat of the others behind
15 the high walls of the Albanian houses; exhibit P301, corroborated by few
16 Prosecution witnesses and two Defence witnesses.
17 The situation was very tense and could be described as dramatic.
18 At the same time, the NLA was conducting ethnic cleansing in Macedonian
19 villages in the area of Tetovo. It was kidnapping and killing civilians,
20 torturing many more. This can be found in the OSCE report, Exhibit 1D267
21 and Exhibit 1D268, 1D16. As the OSCE special report on complaints about
22 human rights related to the armed groups of ethnic Albanians in the Tetovo
23 area, which is Exhibit 1D18, notes: "The mission specialist confirmed the
24 reports from the OSCE monitors in the Tetovo area that even during the
25 cease-fire the ethnic Macedonian civilian population north of Tetovo is
1 under heavy pressure from the armed groups of ethnic Albanians to leave.
2 The pressure is in the form of kidnapping, temporary detentions and
3 serious and persistent forms of intimidation and restriction of the
4 movement of the civilians who try to be engaged in ordinary activities
5 such as agricultural activities, shopping or going to work. The conduct
6 of the armed groups of ethnic Albanians is consistent with an attempt to
7 ethnically cleanse this area."
8 The same happened in Kumanovo, where local Macedonians and others
9 were ethnically cleansed by the NLA and have not returned to their homes
10 to this date. The same was done by the terrorists in Skopje, in the
11 village of Aracinovo, where all Macedonian houses were burned down and the
12 Macedonians still live in temporary shelters to this date. Due to the
13 gravity of the situation the Macedonian Security Council met on the 10th
14 of August, 2001, and demanded a firm action; Exhibit 1D249.
15 Your Honours, as it will be explained by the military expert,
16 after the killing of the ten Macedonian soldiers in Karpalak, again in
17 ambush as the Prosecution witness Henry Bolton testified, 300 kilograms of
18 explosives were planted under the highway, Tetovo-Skopje. The supreme
19 commander, Mr. Boris Trajkovski, dismissed from duty the chief of the
20 military staff -- of the General Staff; Exhibit 2D84.
21 Furthermore, the order of the president of Macedonia to destroy
22 the NLA on the highway [as interpreted] Tetovo-Jazince - it should be road
23 in the transcript, not a highway - leaked from the military staff and was
24 made public on the national TV which is why the plan failed. However
25 strange it may appear at first glance, the preparations for the action
1 were conducted in conspirative manner and only among those that should
2 have been its direct perpetrators, the 3rd Battalion of the 1st Guardist
3 Brigade and the department for internal affairs in Cair for the action in
4 the village of Ljuboten. This was logical. It has to be taken into
5 account that the plan to attack the Tetovo-Jazince road on the 5th of
6 August, 2001 leaked to the media by some of the top military commanders
7 and the chief of the General Staff was revoked on the 10th of August,
8 2001. A new one was not appointed and the preparations demanded a certain
9 degree of planning. As this was the case for Ljuboten, in such abnormal
10 circumstances, the president of Macedonia ordered that the police and the
11 army jointly defend of village of Ljubanci and the access to Skopje and,
12 should it be necessary, to attack; Exhibit P303.
13 He ordered Tarculovski to monitor the situation and to inform him
14 about it. On that date, members of the police arrived in the village of
15 Ljubanci and held a meeting with the army, on which meeting various
16 options were discussed. The president of Macedonia had all the necessary
17 intelligence information. He had information that the NLA battalion was
18 trying to enter the village of Ljuboten to reinforce the present members
19 of the NLA which were located there. The president had information that
20 after the mine incident the members of the NLA withdrew in the village of
21 Ljuboten and made defensive positions. He had information who the NLA
22 members in the village were as well as of the fact that there were
23 terrorists in the village. Every structure of the army and the police had
24 information that Ljuboten was a village which was full of NLA members and
25 that many villagers from Ljuboten were NLA members too. These forces
1 remained under the full authority of the president of the country. Even
2 OSCE had information that the NLA had a covert presence in Ljuboten;
3 Exhibit 1D23.
4 There was no initial plan to enter the village of Ljuboten which
5 didn't happen, probably because the commander of the 3rd Guardist
6 Battalion, Major Despodov was awaiting further orders from his superiors.
7 Consequently on the night of the 11th of August, 2001, between 18 and 19
8 hours a telephone conversation took place between President Trajkovski and
9 Major Mitre Despodov through Johan Tarculovski. It is important to take
10 into account the legislation for the service in the army. I quote: "A
11 military officer has the obligation to execute the order of a superior
12 that relates to his fulfilment of service. A military officer is also
13 obliged to execute the orders of a senior officer if his immediate
14 superior officer is not present and when necessary measures must be
15 undertaken to complete urgent and significant tasks."
16 In this case, President Trajkovski asked the supreme commander
17 could give an order to Major Despodov who would have the obligation to
18 execute it.
19 If this had been the case, the attack would have commenced on
20 Saturday, on the 11th of August, 2001. However, during a moment of
21 tension on Sunday, 12th August, 2001, around 8.00 a.m., as German
22 intelligence sources report, in Exhibit 1D224, and in an OSCE report,
23 Exhibit 1D12, Exhibit 1D23, 1D24, the so-called NLA launched a mortar
24 attack on the Macedonian positions near the orthodox church in Ljuboten.
25 The so-called NLA was the one that provoked the response and their goal
1 was precisely this, to create an incident which the president wanted to
2 avoid at all costs.
3 After the three mortars exploded, the army responded with a
4 barrage of mortar fire on identified targets in the village. Targets
5 included sniper positions of the so-called NLA inside the village,
6 machine-guns positions, and suspected mortar positions. This was
7 confirmed by numerous Prosecution witnesses and documented evidence. The
8 same will be confirmed by two credible Defence witnesses, one of them a
9 professional army officer, who were based just above the village of
10 Ljuboten and had an overall view of the events that followed.
11 The Prosecution attempted to present evidence that in the early
12 morning hours on Sunday, 12th August 2001, the village of Ljuboten and its
13 residents were subject to an intense brutal and unlawful attack for which
14 the accused are criminally responsible. The evidence has shown that the
15 attack of the army and the police forces was proportionate, aimed only at
16 the terrorists at the locations from where they were shooting at
17 Macedonian positions, encouraged by the recent death of the Macedonian
18 soldiers and the fact that NLA reinforcement was on the way to the
19 village, only 500 metres from the south-eastern part. The evidence
20 showed, and the Prosecution acknowledged in the indictment, that this NLA
21 reinforcements consisted of two groups of NLA fighters, the so-called
22 Arusha group and Teli group led by the notorious commander Xhezair Shaqiri
23 Hoxha who tried to enter the village of Ljuboten but were stopped by the
24 Macedonian army who spotted them and opened machine-gun and mortar fire
25 resulting in the death of several members of the NLA.
1 Unlike other places where the NLA was present - not all - no
2 trenches were dug in Ljuboten for the simple reason that the security
3 forces were present in the hills above Ljuboten and would have noticed it
4 and also because of the location of Ljuboten. The village borders with
5 villages that are populated by majority non-ethnic Albanians while the
6 majority ethnic Albanian villages lie a further distance away to the north
7 and the north-east. Non-ethnic Albanian population also lives in Ljuboten
8 although their number is very small. Nonetheless, the extremists did not
9 leave anything to chance and several days prior to the incident with the
10 mine on 10th August, 2001, numerous trips were made by tractor to get sand
11 from the Banjani mine, used to fill sandbags for fortifications; Exhibit
12 1D166. Also to emphasise the testimony of one of the Prosecution
13 witnesses, M-051, who stated that there was at least one defensive
14 position inside the village at that time.
15 Your Honours, I would like now in brief to describe the NLA
16 tactics when losing battles. In order to attract international attention
17 and to boost the morale of its soldiers when all battles were lost the NLA
18 described this either as a tactical withdrawal or that the deceased were
19 not NLA members but innocent civilians. This was proved in the testimony
20 of the Prosecution witness Mr. Nazim Bushi, who testified that NLA members
21 who attacked the Macedonian positions near the stadium in Tetovo in March
22 2001 were civilians, although it was proven that they were in fact NLA
23 members trying to throw a hand-grenade on a Macedonian check-point;
24 Exhibit 2D49 and 2D51.
25 This is relevant, Your Honours, because you will have to decide
1 under what circumstances certain persons might have died or were injured.
2 Also let us be reminded that up until the testimony of the present parents
3 of Rami Jusufi the overall international public was informed that he was
4 sleeping and that it was the blood thirsty Macedonians that killed him
5 while he was in pyjamas. Confronted with material evidence, the parents
6 several days before their testimony changed his statements and testified
7 that he was not in pyjamas but that he had changed in jeans.
8 Regarding the death of Rami Jusufi it must be emphasised that
9 according to the post-mortem report and the expertise it would have been
10 impossible for him to die in the manner described by his parents but that
11 rather, he had to have been in a more elevated position; Exhibit 1D78.
12 While the autopsy was performed, there were no signs of blood on the body;
13 Exhibit 1D208.
14 Your Honours, the Macedonian forces were fighting with a ghost
15 armed group. One moment they were NLA fighters and were taking
16 photographs like movie stars while at other moments they were innocent
17 civilians whose rights were abused by the police. After the capture of
18 Vaksince in May 2001, 200 strong men that fought in the village suddenly
19 vanished after it was captured and only 150 civilians remained -- 1500
20 civilians remained. It was the NLA tactics to use civilians as human
21 shields and to hide behind women and children when losing. This was
22 reported and shown in several OSCE reports that had the most credible and
23 independent information from the field; Exhibit 1D16.
24 The same happened in Ljuboten. The terrorists who were shooting
25 at the army and the police, once they felt they were losing the battle,
1 became all of a sudden innocent civilians who hid in their basements with
2 women and children. Some of them like Bajram Jashari, Kadri Bajrami and
3 Xhelal Bajrami with their comrades from the Zendeli family tried to escape
4 in the direction where the NLA reinforcement was but they were spotted and
5 neutralised by the army. The other two managed to escape and join their
6 comrades of the NLA and proudly took pictures as NLA members; Exhibit
8 Your Honours, the operation of the army and the police to dislodge
9 the positions of the NLA was neither brutal nor intensive. It was
10 proportional enough to crush the presence of the NLA in the village. It
11 was not envisaged to abuse or harm civilians. Only selected houses in
12 limited neighbourhoods were carefully targeted. These selected target
13 houses were established as NLA positions. At the time of the attack, the
14 village was full with villagers and civilians. The NLA was a threat to
15 local villagers but also to everyone else around the village. The real
16 culprits for what happened in the village are those members of the NLA who
17 felt that it was acceptable to murder members of the army and then go and
18 hide against civilians. The security forces entered only one house. The
19 house that they entered, the Ametovski house, was the place where the
20 Bajrami family was hiding. This family was a famous NLA family from where
21 Shefajet Bajrami comes from; this is the person who planted the mine that
22 killed eight Macedonian soldiers, as well as Rafet Bajrami comes from
23 there. It was not by chance that they were found in this house. The
24 security forces had credible information where they were hiding from
25 Albanian sources in the village. This was the only house that was entered
1 into. If the goal of the security forces had been to kill civilians, they
2 would have entered all houses and would have killed anyone they might have
4 Your Honour, the security forces, from 8.00 in the morning till
5 11.00, were unable to break the resistance that they faced at the entrance
6 of Ljuboten from the western side, near the orthodox church. If there had
7 been no NLA presence in the village, as the Prosecution claims, what were
8 these forces doing in these locations for several hours? After the
9 resistance was broken, the security forces proceeded in the direction of
10 previously identified targets that were in the Ametovski house and then
11 Jashari house, which were identified by Prosecution witnesses as houses
12 where sniper and machine-gun fire came from. This will also be confirmed
13 by Defence witnesses from the army.
14 The two Defence witnesses will corroborate the Prosecution
15 witnesses (redacted) and M-092; Exhibit P206 and P215, that after they
16 escaped from the Jashari house, they were not spotted by the police forces
17 on the ground but were spotted by the army positioned on Malistena or
18 Smok, who opened fire on them and probably killed them. The Defence
19 witnesses will testify that it was a legitimate military target because
20 the Jashari house was a house identified by the army as a sniper and
21 machine-gun position. Surely once the resistance of the NLA was being
22 broken down, the NLA terrorists stationed in the Jashari house decided to
23 flee towards the NLA positions above Ljuboten and became legitimate
24 targets. From the same place, three pieces of weaponry were found and are
25 now in the evidence of the Court.
1 Your Honours, the theory of the Prosecution that those who entered
2 the village intended to murder people presumes -- a presumption to that
3 end cannot be drawn. Furthermore, the limited number of death casualties
4 considering the intensity of the military exchange and of the terrorists
5 in the village and of the security forces and the danger of this kind of
6 urban fighting positively demonstrates that the death of these persons was
7 related to combat activities and that they themselves took part in such
8 activities. The other 2.000 Ljuboten villagers were left intact. If the
9 intent of the group was to kill civilians, they would have gone house by
10 house and killed everyone they would find in their way. No woman, no
11 child or elderly person was touched or hurt or searched. As a fact, a
12 battalion of posebna was sent to save from the local villagers and efforts
13 were made for them to be taken to safety. The whole operation ended
14 around noon. The forces that entered the village after less than an hour
15 withdrew, once they neutralized the NLA positions located at and near the
16 Jashari house. The civilians that were held hostage by the terrorists
17 left in the direction of Skopje.
18 As I explained previously, the tactics of the NLA was to dress
19 themselves in civilian clothing after they were defeated. This is why the
20 police detained Ljuboten villagers and only those with a positive paraffin
21 glove test were brought before an investigating judge and before justice,
22 while those with a negative paraffin glove test were released.
23 Mr. Tarculovski did not have any information about the development
24 of this operation and did not have any authority to communicate or to
25 control the involved parties.
1 Your Honours, now I would like to speak about the alleged criminal
2 liability of Mr. Johan Tarculovski.
3 It is the duty of the Prosecution to prove beyond reasonable doubt
4 that the accused Tarculovski is responsible pursuant to Article 7(1) of
5 the Statute for the crimes described in the Second Amended Indictment.
6 The Prosecution failed to prove beyond reasonable doubt that Johan is
7 guilty for the charges. The Defence acknowledges that Mr. Tarculovski was
8 present in Ljubanci during the events, and he does not deny this. He was
9 there upon a very clear order of the president to monitor the situation
10 and to inform him. Furthermore, he was there to convey messages to the
11 members of the army and the police that were on the field and this was a
12 practice which was very frequently used by the president and this was
13 confirmed by the witness Keskovski.
14 He was also sent by the president to other locations. His
15 presence was legal, because it stemmed out of a direct order of the
17 The Prosecution failed to prove beyond reasonable doubt and the
18 Defence will not give evidence about the participation of the accused
19 Tarculovski in the joint criminal enterprise together with several other
20 individuals. The Prosecution did not prove that anyone had agreed to
21 commit crimes, let alone to commit crimes that are charged. The
22 Prosecutor failed to prove that anybody participated in such an
23 operation. It is a fact and is contrary to the allegations that those
24 that were involved had the same legitimate intention in mind, to conduct
25 anti-terrorist operation with an aim to avoid further attacks from the NLA
1 as such. This deed, as it is defined in the Second Amended Indictment
2 does not exist. The Prosecution claims without evidence that the object
3 of this enterprise was a direct and unlawful attack on civilians and
4 civilian objects in the village of Ljuboten, which could not be justified
5 with military necessity. The action of the Macedonian police and the army
6 was legal and legitimate. It was ordered by the late President Trajkovski
7 to defend the Macedonian villages near Ljuboten and to destroy the NLA
8 positions in and around Ljuboten.
9 The army and the police had reliable information that the village
10 of Ljuboten was under the NLA control and all the activities were directed
11 towards destroying the NLA in the village. As stated before, only
12 carefully selected NLA positions were targeted and civilian population of
13 about 2.000 civilians left unharmed. The Prosecution failed to prove that
14 there existed a common plan, a design and a purpose, as element of the
16 The alleged existence of the joint criminal enterprise is a legal
17 construction without solid grounds in the evidence. The Prosecution did
18 not lead evidence about the alleged participation of Johan in such a
19 plan. The Prosecution failed to establish that Johan knew of such an
20 enterprise, and the evidence do not leave any doubts that the operation
21 was legitimate and that all involved parties knew and were convinced that
22 there was presence of NLA in the village which was a danger that needed to
23 be eliminated.
24 The village and the villagers were never a target. The
25 Prosecution failed to present evidence who were the other members of the
1 joint criminal enterprise and who their role was. The reason for this is
2 very simple: There was no joint criminal enterprise, and there were no
3 members of the joint criminal enterprise. There is no evidence that the
4 individuals alleged to have been members of that joint criminal
5 enterprise, as identified in the Prosecution pre-trial brief had any part
6 in crime, let alone the crimes they are charged with. Even more, the
7 Prosecution failed to lead evidence to prove beyond reasonable doubt the
8 alleged mens rea of the accused. With the regard of the first type of the
9 joint criminal enterprise, the Prosecution failed to lead evidence whether
10 Johan shared intent with others to murder and to treat civilians in a
11 cruel manner, nor to wantonly destroy villages or cities.
12 In regards with the third type of the joint criminal enterprise,
13 the Prosecution failed to lead evidence and failed to prove that the
14 accused had sufficient knowledge that the alleged additional crimes were a
15 natural and foreseeable consequence of the primary plan, which, according
16 to the indictment, was to conduct unlawful attack on civilians and
17 civilian objects in the village of Ljuboten. Surely the accused
18 Tarculovski was there upon the request of the president to monitor, to
19 inform him, and to send messages to the army and police chiefs. That was
20 an order that he could not refuse coming from the supreme commander of the
21 armed forces. Unfortunately, President Trajkovski passed away and cannot
22 help this Chamber in confirming the truth. However, one Prosecution
23 witness, Mr. Despodov, and one witness of Boskoski, Mr. Keskovski,
24 testified that Johan was the messenger between the army and the
25 president. There was no order or agreement to commit any crime but there
1 was an intent to avoid any further crimes that the so-called NLA may
2 commit. The authorities, especially the president, were convinced that
3 NLA members were in the village and that was the reason why the president
4 ordered the operation so as to avoid that NLA could organise any further
5 operations that would impede the signing of the Ohrid Agreement on the
6 13th of August, 2001.
7 Regarding his alleged criminal liability through planning, the
8 Prosecution did not lead any evidence in that point, and they failed to
9 prove beyond reasonable doubt that Mr. Tarculovski planned or designed
10 preparatory and executive phases of the criminal conduct, constituting
11 some of the crimes he is charged with in the Second Amended Indictment.
12 In fact the Prosecutor failed to demonstrate that Mr. Tarculovski played
13 any part in committing of any of the crimes that he is charged with, and
14 therefore, the Prosecutor failed to prove that Mr. Tarculovski acted with
15 an intent what crime should be committed or with awareness of the
16 substantial likelihood the crime will be committed in the execution of
17 that plan. Indeed this was legal joint operation by the Macedonian army
18 and the police to destroy terrorists that were based in the village of
19 Ljuboten. Neither did Johan control nor command anyone in Ljuboten. Not
20 one single alleged perpetrator has been identified. Johan never
21 associated himself with any of the alleged perpetrators which the
22 Prosecutor failed to identify and failed to prove to be criminals.
23 I'm not going to speak about the charges in the second amended
24 indictment regarding the alleged criminal liability of the accused
25 Tarculovski in instigating, ordering, aiding and abetting as charged in
1 the second amended indictment, due to the fact that the Prosecution made
2 no effort to prove any of the above-mentioned forms of perpetration. If
3 the Prosecution tried to establish this, then the Prosecution completely
5 Your Honours, this is a very strange case and indictment. We are
6 not going to try to evaluate the political reasons why the Prosecution
7 decided to prosecute only the Ljuboten case and decided not to prosecute
8 clear cases of ethnic cleansing, rape, murder and torture perpetrated by
9 the NLA members; yet the Prosecution decided to indict those who tried and
10 succeeded in defending Macedonia, those that had the courage to stand up
11 and confront the terrorist threat that threatened to destroy democratic
13 We should mention here the one-sided partial and non-professional
14 report of Mr. Bouckaert which was sent to international organisations and
15 the media. His intentions maybe were not dishonest, but his approach
16 was. His conclusions are wrong. His methodology was wrong. His
17 unpreparedness to hear the side of the Macedonian authors was wrong. He
18 was one-sided and his attempt to give Mr. Boskoski the only responsibility
19 was wrong. His idea to be an investigator, a judge and to decide the
20 trial in just one week by deciding that the Macedonian security forces are
21 guilty and then by sending the sensational news to all international media
22 was completely wrong. This report totally disregards the findings of the
23 OSCE, the International Crisis Group, the EU Monitoring Mission, the
24 International Committee of Red Cross and other relevant international
25 organisations. In this modern world of communication all news broadcast
1 via the media are accepted and the media have become the ultimate judge.
2 Fortunately, the international justice is still in the hands of
3 experienced lawyers who are trained and able to impartially assess the
4 evidence and witnesses in reaching just verdict.
5 Your Honours, this is a historical case for Macedonia. This case
6 will either give legitimacy to the security forces of Macedonia in
7 defending the sovereignty of Macedonia or will award the terrorists who
8 tried to destroy the constitutional order of the Republic of Macedonia,
9 member of the United Nations. We have full faith that this Trial Chamber
10 will reach a just verdict and that being to acquit the accused
11 Tarculovski. The acquittal will not only be fair but the only fair thing
12 to do.
13 Thank you, Your Honours, for listening to my opening statement.
14 JUDGE PARKER: Thank you, indeed, Mr. Apostolski, for the
15 comprehensive approach you have taken to the issues.
16 That concludes what is planned to be dealt with today. We,
17 therefore, adjourn now, with a view to the evidence that you will be
18 leading, commencing tomorrow, and we are sitting tomorrow in the morning,
19 I hope has been noticed, and in another courtroom.
20 So that we adjourn now until 9.00 tomorrow.
21 --- Whereupon the hearing adjourned at 5.38 p.m,
22 to be reconvened on Wednesday, the 5th day of
23 March, 2008, at 9.00 a.m.