1 Wednesday, 19 May 2010
2 [Appeals Judgement]
3 [Open session]
4 [The Appellant Tarculovski entered court]
5 --- Upon commencing at 9.30 a.m.
6 JUDGE ROBINSON: Will the Registrar please call the case.
7 THE REGISTRAR: Thank you, Your Honour. This is case number
8 IT-04-82-A, the Prosecutor versus Ljube Boskoski and Johan Tarculovski.
9 JUDGE ROBINSON: I am to ask Mr. Boskoski whether he can follow
10 the proceedings through the translation.
11 MR. BOSKOSKI: [No interpretation]
12 JUDGE ROBINSON: And Mr. Tarculovski, are you able to follow the
13 proceedings through the translation.
14 THE APPELLANT TARCULOVSKI: [Interpretation] Yes, Your Honour.
15 JUDGE ROBINSON: Thank you.
16 May I have the appearances now for the Prosecution.
17 MR. ROGERS: Your Honours, good morning. Paul Rogers appearing
18 for the Prosecution, together with Laurel Baig and our Case Manager today
19 Mr. Colin Nawrot.
20 JUDGE ROBINSON: Thank you. And for the Defence of Mr. Boskoski.
21 MS. RESIDOVIC: [Interpretation] Good morning, Your Honours.
22 Edina Residovic, lead counsel, together with Guenael Mettraux co-counsel,
23 representing Ljube Boskoski.
24 JUDGE ROBINSON: Thank you very much. And the Defence of
25 Mr. Tarculovski.
1 MR. N. DERSHOWITZ: [Via teleconference] Nathan Dershowitz on
2 behalf of Mr. Tarculovski along with Jordan and Antonio Apostolski.
3 JUDGE ROBINSON: Thank you very much. Today the Appeals Chamber
4 delivers its Judgement in this case.
5 Following the practice of the Tribunal, I will not read the text
6 of the Judgement except for the disposition. Instead, I will summarise
7 the issues on appeal and the findings of the Appeals Chamber. This
8 summary is not part of the written Judgement, the written Judgement will
9 is the only authoritative account of the Appeals Chamber's rulings and
10 reasons. Copies of the written judgement will be made available to the
11 parties at the conclusion of this hearing.
12 The case concerns the events during and subsequent to a police
13 operation conducted on the 12th of August, 2001, in the village of
14 Ljuboten, situated in the northern part of the former Yugoslav Republic
15 of Macedonia
16 FYROM. At the relevant time, Ljube Boskoski was the minister of the
17 interior of the FYROM, and Johan Tarculovski was a police officer.
18 The Trial Chamber found Johan Tarculovski guilty of ordering,
19 planning and instigating murder, wanton destruction and cruel treatment,
20 all violations of the laws or customs of war under Article 3 of the
21 Statute. He was sentenced to a single sentence of imprisonment of 12
22 years. Ljube Boskoski was acquitted on all charges.
23 Mr. Tarculovski has presented seven grounds of appeal,
24 challenging his conviction and sentence. The Prosecution has appealed
25 Mr. Boskoski's acquittal.
1 I will first address Johan Tarculovski's grounds of appeal and
2 then turn to the Prosecution's appeal, following which, the disposition
3 will be read.
4 In his first ground of appeal, Mr. Tarculovski submits that the
5 conflict in the FYROM during the relevant period between FYROM security
6 forces and the National Liberation Army, also known as the NLA, did not
7 reach the level of an armed conflict as it did not meet the threshold
8 requirement of intensity.
9 The Trial Chamber did not err in concluding that the intensity of
10 the conflict in the FYROM and the NLA's features identifying it as an
11 organised armed group were such that an internal armed conflict existed
12 in the FYROM in August 2001. The Appeals Chamber sees no error in this
14 Mr. Tarculovski further contends that the Tribunal's exercise of
15 jurisdiction over this case is improper as the Tribunal did not determine
16 whether the government of the FYROM lawfully ordered the operation in
17 self-defence to root out terrorists from amongst the villagers.
18 Moreover, he argues that the exercise of jurisdiction by the Tribunal is
19 contrary to the actions of the United Nations Security Council.
20 The Appeals Chamber considers that the fact that a state resorted
21 to force in self-defence in an internal armed conflict against an armed
22 group does not, in and of itself, prevent the qualification of crimes
23 committed therein as series violations of international humanitarian law.
24 Moreover, the United Nations Security Council did not state that the
25 situation in the FYROM was outside the Tribunal's jurisdiction.
1 Consequently, this ground of appeal is dismissed in its entirety.
2 In his second ground of appeal, Mr. Tarculovski submits that the
3 events in Ljuboten on the 12th of August, 2001 did not violate the laws
4 or customs of war, since they were the result of a sovereign state's
5 legitimate and proportionate response to an internal terrorist attack.
6 He also questions the applicability of the laws or customs of war in
7 determining individual criminal responsibility for a person assigned to
8 carry out a legitimate operation planned by a sovereign state.
9 The Appeals Chambers finds that the application of rules
10 applicable in armed conflict is not affected by the legitimacy of the use
11 of force by a party to the armed conflict. Therefore, the fact that a
12 state is acting in lawful self-defence against terrorists in an internal
13 armed conflict does not render Common Article 3 inapplicable. Nor is it
14 relevant for determination of whether a representative of this state has
15 committed a serious violation of international humanitarian law during
16 the exercise of the state's right to self-defence. Accordingly, the
17 Trial Chamber did not err in applying the laws or customs of war in the
18 present case.
19 This, the second ground of appeal, is dismissed in its entirety.
20 In his fifth ground of appeal, Mr. Tarculovski contends that the
21 Trial Chamber improperly rejected the testimony of entire categories of
22 witnesses, while it later selectively relied upon this testimony.
23 The Appeals Chamber observes that the Trial Chamber took a
24 careful approach to the evaluation of the evidence provided by these
25 categories of witnesses. Mr. Tarculovski has not demonstrated any error
1 in the Trial Chamber's acceptance of certain parts of their testimony and
2 its rejection of other parts.
3 And, consequently, this, the fifth ground of appeal is dismissed.
4 Under parts of his third, fourth, and fifth grounds of appeal,
5 Mr. Tarculovski submits that the Trial Chamber erred when it held that to
6 incur criminal liability for acts prohibited under Common Article 3 it
7 must merely be established that the victims for the alleged violation
8 were not taking an active part in the hostilities when the crime was
9 committed. He argues that the Prosecution must also show that the
10 perpetrator was aware or should have been aware of this protected status
11 of the victim.
12 In light of the principle of individual guilt, the
13 Appeals Chamber is satisfied that it must be proven that the perpetrator
14 of a Common Article 3 crime knew or should have been aware that the
15 victim was taking no active part in the hostilities when the crime was
16 committed. Although there are no explicit findings in this regard in the
17 Trial Judgement, when that Judgement is read as a whole, it is clear that
18 the Trial Chamber examined whether the direct perpetrators knew or should
19 have been aware of the protected status of the victims in relation to
20 each crime. This argument is, therefore, dismissed.
21 In his fourth ground of appeal, Mr. Tarculovski contends that the
22 evidence was insufficient to find that murder, wanton destruction, and
23 cruel treatment were established beyond a reasonable doubt.
24 The Appeals Chamber is satisfied, however, that the Trial Chamber
25 identified the perpetrators of the three charged murders as men belonging
1 to the police group led by Johan Tarculovski. The evidence was also
2 sufficient to establish beyond a reasonable doubt the circumstances of
3 the killing of each victim and the circumstances of the cruel treatment,
4 as well as the status of the victims and the mens rea of the perpetrators
5 thereon. Mr. Tarculovski has failed to show that the Trial Chamber's
6 findings in these respects were erroneous.
7 Regarding the wanton destruction of 12 houses, Johan Tarculovski
8 has not shown any error in the Trial Chamber's findings that none of the
9 houses caught fire accidentally or through the shelling by the FYROM army
10 or the NLA; that it was the police who started the fire; and that none of
11 the houses were used for military purposes when they were set on fire.
12 This ground of appeal is dismissed.
13 In his third ground of appeal, he submitted that the
14 Trial Chamber erred in its application of the modes of liability of
15 planning, instigating, an ordering under Article 7(1) of the Statute.
16 In relation to planning, the contention is that the Trial Chamber
17 erred in concluding that the predominant object of the police operation
18 in Ljuboten on the 12th of August, 2001 was to indiscriminately attack
19 ethnic Albanians and their property. He claims that the evidence shows
20 that the police operation was to eradicate NLA members, who were
21 described as terrorists, from Ljuboten. He also maintains that it could
22 have been the FYROM President or higher officials of the Ministry of
23 Interior who planned it.
24 The Appeals Chamber finds no error in the Trial Chamber's
25 findings that the predominant object of the operation was to
1 indiscriminately attack Albanian villagers and property; that
2 Johan Tarculovski had the necessary intent; and that he was involved in
3 the planning of the operation. The possible involvement of other persons
4 in the planning of the operation does not impact on the Trial Chamber's
5 finding that Johan Tarculovski was criminally responsible for planning
6 the attack.
7 With regard to instigating and ordering, Johan Tarculovski
8 contends that the Trial Chamber erred in convicting him under these modes
9 of liability as there was no evidence suggesting that he prompted or
10 instructed any other person to commit a crime. In respect of ordering,
11 he also maintains that there was no evidence showing that he had de jure
12 or de facto authority to order killings, burnings or beatings. Moreover,
13 he submitted that the Trial Chamber erred in finding that he had the
14 mens rea to order that specific crimes be committed, although it could
15 not determine who ordered the operation.
16 The Appeals Chamber finds no error in the Trial Chamber's finding
17 that Johan Tarculovski prompted and instructed police members to commit
18 the crimes at issue and that he had a position of authority to compel
19 them to commit the crimes. The fact that he was ordered to lead the
20 operation does not exonerate him from criminal responsibility if, in the
21 execution of the order, he, in turn, instructed other persons to commit a
23 Accordingly, this ground of appeal is dismissed.
24 Mr. Tarculovski's sixth ground of appeal concerns his statements
25 to a commission established by the Ministry of Interior to investigate
1 what had occurred in Ljuboten. He maintains that the admission of these
2 out-of-court statements was not in conformity with Rule 89 of the
3 Tribunal Rules of Procedure and Evidence and the general principles of
4 law. He also vers that since the Trial Chamber considered that the
5 statements were reliable in admitting them into evidence it should have
6 given credence to the statements in his favour. The Appeals Chamber
7 considers that the Trial Chamber was entitled to admit, pursuant to
8 Rule 89, the statements as accurately representing Johan Tarculovski's
9 evidence before the commission. The general principles of law do not
10 dictate the exclusion of out-of-court statements. The Appeals Chamber
11 also finds that the Trial Chamber properly weighed the statements in
12 light of other evidence.
13 Accordingly, the sixth ground of appeal is dismissed.
14 In his seventh ground of appeal, Mr. Tarculovski asserts that the
15 Trial Chamber erred in sentencing him to 12 years imprisonment. In
16 particular, he submits that the Trial Chamber failed to consider as a
17 mitigating circumstance the fact that he was carrying out orders of those
18 senior to him. He further maintains that the Trial Chamber failed to
19 consider that the FYROM later granted amnesty to those involved in both
20 sides of the conflict.
21 The Appeals Chamber considers that the Trial Chamber did take
22 into account that Johan Tarculovski was carrying out orders of unknown
23 persons, when assessing the gravity of the offences. Moreover, the
24 relevant legislation of the FYROM contains a provision that those who
25 committed criminal acts falling within the jurisdiction of the Tribunal
1 are excluded from the grant of amnesty. Moreover, the Trial Chamber was
2 not bound by the FYROM sentencing practices.
3 The seventh ground of appeal is dismissed.
4 I turn now to the Prosecution's appeal against the acquittal of
5 Mr. Boskoski.
6 The Prosecution submits that the Trial Chamber committed an error
7 of law when it incorrectly required under Article 7(3) of the Statute
8 that a superior need only provide a report to the competent authorities,
9 which was likely to trigger an investigation into the alleged criminal
11 The Appeals Chamber is satisfied, however, that the Trial Chamber
12 correctly held that a superior may, under specific circumstances,
13 discharge his obligations to punish an offending subordinate by reporting
14 to the competent authorities, provided that this report is likely to
15 trigger an investigation or initiate disciplinary or criminal
17 In the alternative, the Prosecution submits that the
18 Trial Chamber erred in fact in finding that Mr. Boskoski had taken the
19 necessary and reasonable measures to punish his offending subordinates.
20 In particular, the Prosecution submits that reports provided by the
21 Ministry of Interior to the competent judicial authorities were incapable
22 of triggering a criminal investigations into the events in Ljuboten.
23 The Appeals Chamber observes that the Trial Chamber was aware
24 that the notifications made by the Ministry of Interior to the judicial
25 authorities were not fully adequate. The Trial Chamber also recognised
1 that no normal police investigations were carried out with respect to the
2 relevant events. However, the Trial Chamber held that the notifications
3 ought, in the ordinary course, to have led the judicial authorities to
4 conduct a proper investigation.
5 In reaching this conclusion, the Trial Chamber particularly noted
6 that the notifications brought the deaths of ethnic Albanians to the
7 attention of the competent authorities and while suggesting one cause,
8 left the cause of death open. Furthermore, the evidence indicates that
9 the notifications were made on the 12th and 14th August, 2001, and that
10 an investigation team was immediately set up by the competent judicial
11 authorities and attempted to conduct an on-site investigation in
12 Ljuboten. The evidence also shows that Mr. Boskoski was informed of
13 these notifications and the investigation attempt. The Trial Chamber
14 found that the serious failure to adequately investigate on the basis of
15 the police reports to the judicial authorities was not attributable to
16 Mr. Boskoski, as the judicial authorities were not under his ministerial
17 authority. The Trial Chamber also held that there was no basis for
18 concluding that he tried to interfere impermissibly in the investigations
19 or that he was aware of the failure of the police to perform their normal
20 functions. The Prosecution has not shown that these findings were
22 The Appeals Chamber holds that the Trial Chamber did not err when
23 it found that the notifications ought in the ordinary course, to have led
24 the judicial authorities to conduct a proper investigation in the events
25 in Ljuboten. Based on this finding, the Trial Chamber held that it was
1 not shown that Mr. Boskoski failed to take the necessary and reasonable
2 measures. In the circumstances of this case, it was open to a reasonable
3 trier of fact to acquit Mr. Boskoski of failure to punish responsibility
4 on the basis of information given to the judicial authorities.
5 The Trial Chamber did not commit a factual error when it arrived
6 at this conclusion.
7 As a result, the Prosecution's appeal is dismissed in its
9 I will now read out the disposition of the Appeals Judgement.
10 Mr. Boskoski and Mr. Tarculovski, will you please rise.
11 For the forgoing reasons, Appeals Chamber, pursuant to Article 25
12 of the Statute and Rules 117 and 118 of the Rules of Procedure and
14 And noting the respective written submissions of the parties and
15 the arguments they presented at the hearing on the 29th of October, 2009
16 Sitting in open session;
17 Dismisses Johan Tarculovski's appeal in its entirety;
18 Dismisses the Prosecution's appeal in its entirety;
19 Affirms the acquittal of Ljube Boskoski and the sentence imposed
20 by the Trial Chamber against Johan Tarculovski, subject to credit being
21 given under Rule 101(C) of the Rules for the period Johan Tarculovski has
22 already spent in detention; and
23 Orders, in accordance with Rule 103(C) and Rule 107 of the Rules,
24 that Johan Tarculovski is to remain in the custody of the Tribunal,
25 pending the finalisation of arrangements for the transfer to the state in
1 which his sentence will be served.
2 Judge Liu appends a separate opinion.
3 Mr. Boskoski, Mr. Tarculovski, you may be seated.
4 The Registrar will deliver a copy of the Judgement to the
6 The hearing is adjourned.
7 --- Whereupon the hearing adjourned at 9.59 a.m.