Tribunal Criminal Tribunal for the Former Yugoslavia

Page 117

1 Monday, 12 December 2005

2 [Status Conference]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 4.03 p.m.

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

7 think I didn't have my microphone. Would you call the case, please.

8 THE REGISTRAR: Yes, Your Honour. Good afternoon, Your Honour,

9 this is case number IT-04-82-PT, the Prosecutor versus Ljube Boskoski and

10 Johan Tarculovski.

11 JUDGE ESER: Now, welcome to all of you. First of all, I would

12 like to ask the accused whether they can hear the proceedings in a

13 language which they understand.

14 Now, Mr. Boskoski, do you understand the proceedings in your

15 language? Is it okay? Do you understand it? Yes. Thank you. But I

16 have no translation.

17 THE INTERPRETER: His microphone was not on.

18 JUDGE ESER: Would you please turn on your microphone.

19 THE ACCUSED BOSKOSKI: [Interpretation] I do understand,

20 Your Honour.

21 JUDGE ESER: Thank you. Mr. Tarculovski, how about you? Do you

22 understand our proceedings in your own language?

23 THE ACCUSED TARCULOVSKI: [Interpretation] I understand, yes.

24 JUDGE ESER: Now I would like to ask for appearances for the

25 accused. Who is representing the accused Mr. Boskoski?

Page 118

1 MR. GODZO: [Interpretation] Good day, Your Honour, for the accused

2 Boskoski, Dragan Godzo accompanied by co-attorney Edina Residovic and

3 Jesenka Residovic, the case manager. Thank you.

4 JUDGE ESER: And for Mr. Tarculovski.

5 MR. APOSTOLSKI: Good day, Your Honour. For Mr. Johan

6 Tarculovski, attorney Antonio Apostolski, his Defence attorney.

7 JUDGE ESER: Thank you very much. And who is representing the

8 Prosecution.

9 MR. SAXON: Dan Saxon for the Prosecution, Your Honour, with my

10 colleague, Anees Ahmed, and case manager, Salla Moilanen.

11 JUDGE ESER: Thank you very much. The reasons for the Status

12 Conference I think are quite clear to you, but I would like to pronounce

13 it also for the public. The last Status Conference was held on August the

14 19th of this year. The Trial Chamber is required, pursuant to Rule 65

15 bis, to hold a Status Conference within 120 days after the initial

16 appearance, or later on, in a similar time, to organise exchanges between

17 the parties so as to ensure expeditious preparation for trial; secondly,

18 to allow the accused to raise issues in relation to his or her mental and

19 physical condition. Now, as it is provided for by the Rules of Procedure

20 and Evidence of this Tribunal in preparation of this Status Conference

21 there was a so-called Rule 65 ter Conference which took place last Friday

22 on the 9th of December which was led by the senior legal officer of Trial

23 Chamber II.

24 I have been fully briefed of the discussions that took place

25 during that conference, and for that reason I think there is no need that

Page 119

1 we repeat everything what had been discussed in this last conference, but

2 still there are quite a few items which we should address and should talk

3 about.

4 My first point would be the indictment and the pre-trial brief as

5 far as we already got them. In the Prosecution's pre-trial brief, there

6 was at least one point which was also addressed in the order of this Trial

7 Chamber where we had observed a contradiction between paragraph 11 of the

8 amended indictment, which refers to Boskoski's superior responsibility for

9 the acts of prison guards, hospital personnel, and other civilians, in

10 paragraph 83 of the Prosecution's pre-trial brief. And also, we already

11 had talked about this issue in the 65 ter Conference.

12 I would like to ask the Prosecution whether you would be prepared

13 to provide further information about the position regarding the

14 relationship between pleading command responsibility in paragraph 11 of

15 the amended indictment and command responsibility as described in

16 paragraph 83 of the pre-trial brief in order to clarify this issue.

17 MR. SAXON: Yes, Your Honour. Thank you. Your Honour, the

18 Prosecution has studied this matter over the weekend and has come prepared

19 today to propose a solution, if it is satisfactory to the Chamber as well

20 as to the accused. And if I may, with the assistance of the usher, I'd

21 like to pass around a draft paragraph 11 with the insertion of a new

22 sentence, which will bring paragraph 11 of the amended indictment

23 hopefully 100 per cent align with the theory of the case -- in line, I

24 should say, with the theory of the case as described in paragraph 83 of

25 the Prosecution's pre-trial brief. So if I could ask the usher to pass

Page 120

1 these around, please, to the Chamber, to the legal officer, and to the

2 Defence counsel and the accused.

3 JUDGE ESER: It would be nice if I also got one. Thank you. Are

4 you now reading from the original indictment or from the amended --

5 proposed amended indictment?

6 MR. SAXON: Your Honour, the Prosecution understands that in the

7 amended indictment the -- it is possible to read the second sentence as

8 implying that Ljube Boskoski had superior responsibility for the acts

9 committed by prison guards, hospital personnel, and civilians, and we

10 understand that this is certainly the issue that the Trial Chamber wishes

11 the Prosecution to clarify.

12 JUDGE ESER: Exactly.

13 MR. SAXON: In paragraph 83 of our pre-trial brief, we -- the

14 Prosecution attempts to address this issue, and the Prosecution's proposed

15 solution is to provide a sentence that is almost identical to the second

16 sentence of paragraph 83 of the Prosecution's pre-trial brief to -- and

17 add that sentence to paragraph 11 so that the penultimate sentence of

18 paragraph 11 of the amended indictment would now read as follows:

19 "Although Ljube Boskoski was not the superior of prison guards, hospital

20 personnel, and civilians within the meaning of Article 7(3) of the

21 Statute, his criminal responsibility for the acts committed by such

22 persons arises as a result of his failure to punish the regular, reserve,

23 or special police for their acts or omissions which aided and abetted

24 those prison guards, hospital personnel, and other civilians to commit

25 those acts."

Page 121

1 Your Honour, the Prosecution suggests that with the addition of

2 this language then paragraph 11 will be hopefully crystal clear as to the

3 parameters of the superior responsibility of Mr. Boskoski.

4 JUDGE ESER: Thank you very much. I assume the Defence is not

5 surprised by this formulation because it is already contained in the

6 pre-trial brief. So would you like to comment to this amendment?

7 MR. GODZO: [Interpretation] Yes, Your Honour, would I like to

8 comment. We believe that the issue of amending the indictment was

9 stressed by the Prosecution in its proposal to amend the indictment, which

10 was partially accepted by the Trial Chamber. We believe that the subject

11 of discussion of today's Status Conference could not be a new amendment to

12 the indictment regardless of the fact that in the pre-trial brief

13 submitted by the Office of the Prosecutor there have been indications that

14 such amendment is possible.

15 The Defence of the accused Boskoski is reserving the right to

16 stress all the objections that it has available in terms of Rule 72 from

17 the Rules of Procedure, and we believe that this is an issue that has to

18 be reviewed based by the Trial Chamber. So in the further proceedings of

19 this Status Conference, we have nothing else to add.

20 JUDGE ESER: Would you like to add something to what has been said

21 by your colleague?

22 MR. APOSTOLSKI: I do not wish to add anything. I support my

23 colleague totally, although this does not pertain to Johan Tarculovski,

24 this amendment -- this proposed amendment to the indictment.

25 JUDGE ESER: Thank you. Now, there may be some misunderstanding.

Page 122

1 I'm not quite clear about it. Of course, there are two issues involved.

2 One question, whether this amendment should be made part of an amended

3 indictment or whether it should simply only be dealt with in this

4 conference, Status Conference. And I -- it was my opinion that, I think

5 for the reasons of clarity, because the indictment has to be clear, it's

6 one of the basic documents for the defendants -- for the accused to know

7 what they are charged with, that this amendment should be made part of a

8 newly edited indictment. And so when we discuss it now today, it's only

9 because we are together here I want to clarify this issue.

10 So may I ask the Prosecution what your -- what you had in mind,

11 whether you had planned to amend the indictment anyhow in this -- in this

12 direction?

13 MR. SAXON: Well, the answer to your question, in short, yes.

14 Yes, Your Honour. The Prosecution, given the observations made by the

15 Senior Legal Officer which were affirmed by Defence counsel at the

16 Pre-Trial Conference [sic] last Friday, there is arguably a lack of

17 clarity in the indictment. It is then the Prosecution's obligation to do

18 whatever it can to correct that possible lack of clarity in interests of

19 the fair trial right of the accused. So quite frankly, Your Honour, that

20 is how we look at this issue, and unless we are told differently by the

21 Trial Chamber, we would in the near future seek to file a motion proposing

22 that paragraph 11 be amended with the language suggested by the

23 Prosecution today.

24 JUDGE ESER: Thank you. Now, what we are going to do is that we

25 will further examine the amended -- the proposed amended indictment and

Page 123

1 compare it with the pre-trial brief in order to find out whether there are

2 any modifications or discrepancies between both and, if so, we would

3 advise both parties, of course in particular the Prosecution but also

4 giving notice to the Defence whether there is need for clarifications and

5 modifications, and if necessary so we may invite both parties to another

6 meeting where these issues will be further discussed.

7 Please.

8 MS. RESIDOVIC: [Interpretation] Your Honours, with your leave I

9 with like to state in relation to what was said by the Prosecutor that the

10 Trial Chamber's order in relation to the form of the indictment stated

11 that the Prosecutor in the pre-trial brief needs to explain in detail in

12 what way it was possible that our client, Mr. Boskoski, was superior to

13 the prison guards and hospital personnel.

14 In this new proposal, as far as I can see, the Prosecution goes

15 beyond this order of the Trial Chamber and claims now, or so it appears,

16 that these acts described in count 11 were actually committed by policemen

17 and not by prison guards or hospital personnel. This was not previously

18 mentioned either in the request to amend the indictment or in the Trial

19 Chamber's order. Based on that, I believe that it would be useful for the

20 Prosecution to file a formal request to amend the indictment so that all

21 of us can be given an opportunity to state our views and positions

22 regarding this.

23 In this case, the indictment is being amended in order to be put

24 in conformity with the pre-trial brief, and it is not done on the basis of

25 the Trial Chamber's order where a clarification was sought in relation to

Page 124

1 civilians. Thank you for listening to me.

2 JUDGE ESER: Okay. If the Prosecution would like to respond to

3 this.

4 MR. SAXON: Very briefly, Your Honour. What the Prosecution has

5 proposed today was done at the request and I believe with the -- of the

6 Senior Legal Officer who certainly represents the Chamber at a Rule 65 ter

7 Status Conference held three days ago with Defence counsel. That's why we

8 have come forward today.

9 JUDGE ESER: As I already stated or -- that before, it was indeed

10 the function of the order of - what was it - of November something that we

11 wanted the Prosecution to clarify this position, and as far as I can see,

12 the clarification which has been put forward today is in conformity with

13 what had been in the pre-trial brief and what's now necessary is to make

14 this modification or amendment, to introduce it as part of the indictment,

15 and this should be done in the same way as any amendments to the

16 indictment are normally made according to the Rules. But as I already

17 indicated, we will go over the amended indictment once more in comparing

18 it with the pre-trial brief in order to find out whether there are any

19 other -- whether there is any other need for clarifications.

20 MR. GODZO: [Interpretation] The Defence of the accused Boskoski

21 entirely understands your comments and understands them -- the comments

22 made by the senior legal officer at the 65 ter Conference which was held

23 on Friday. However, the Defence can -- further remains that in the given

24 case we cannot speak about an explanation, clarification, as it was

25 referred by my learned friend to this document.

Page 125

1 According to our opinion, this is a new indictment, actually

2 amendments to the indictment, and we believe that this should not be

3 allowed at this stage of the proceedings where we have a confirmed amended

4 indictment. We believe that the Prosecution can clarify the indictment

5 per se. However, the Prosecution cannot, from sources like pre-trial

6 brief, to come up with a new crimes that will be alleged to the accused

7 such as the second sentence which we have received today to the paragraph

8 11 of the amended indictment. Thank you very much.

9 JUDGE ESER: I understand your position. We will examine it and

10 then we will come down with the necessary orders and clarifications.

11 Thank you very much.

12 Now, the Defence pre-trial brief, as you are all aware, could be

13 postponed because the original Scheduling Order had to be changed, and for

14 that reason I will now come to outstanding motions.

15 There was a motion by the Defence with regard to production of

16 evidence from a state filed on the 20 October 2005 by the accused

17 Tarculovski. As you have been made aware, there was a response by the

18 Prosecution stating that it does not oppose the position, the motion, and

19 then I had sent a letter to the government of the Former Yugoslavian

20 Republic of Macedonia on 23rd of November. We got a response from them

21 and I was just informed before we started this session that the

22 translation of this letter -- of this material is supposed to be finished

23 by December 21st. And once it is completed, this translation, the Trial

24 Chamber will examine the translated letter and take further measures in

25 accordance with Rule 54 and 54 bis.

Page 126

1 So to sum up this point, the Trial Chamber will take necessary

2 steps, if required, after the translation of the letter and after receipt

3 of the letter, and then we'll come forward again.

4 The next outstanding motion regards a motion by the Prosecution

5 with regard to protective measures, non-disclosure to the public. Neither

6 accused filed a response to it. I was informed that this issue was

7 discussed in the 65 ter meeting to some length, and I just would like to

8 state what the position of the Chamber is.

9 I always the Pre-Trial Judge would like to reaffirm that the

10 protective measures relevant to non-disclosure to the public order in the

11 Prosecution's decision on the motion for protection of victims and

12 witnesses issued on 20 June 2005 cover any of the material and the

13 identity of any witness or group of witnesses provided by the Prosecution

14 to the Defence. This decision also covers the material provided to the

15 Defence under Rule 65 ter of the Rules. Consequently, the Prosecution's

16 motion for protective measures filed with the pre-trial brief on 7

17 November 2005 is moot.

18 As Pre-Trial Judge, I also remind the parties that the decision

19 on -- of June 20, 2005, covers the statements of potential witnesses who

20 are not on the witness list any more as a result of the Prosecution's

21 decisions not to call or who the Prosecution may decide not to call at a

22 later stage. So much to this pending motion.

23 Another pending motion relating -- other pending motions relate to

24 disclosure. There are three pending motions relevant to disclosure. In

25 chronological order the first one is a motion with respect to Rule 68

Page 127

1 material filed by Mr. Boskoski, a motion with respect to Rule 66(A)(ii)

2 and implicitly Rule 66(A)(i) and 65 ter(E)(iii) material also filed by Mr.

3 Boskoski, and then a motion with respect to Rule 66 (A)(ii) material filed

4 by Mr. Tarculovski. All this has been discussed in the 65 ter Conference.

5 As Pre-Trial Judge, I confirm that the Chamber will soon issue a

6 Scheduling Order setting various deadlines for the completion of various

7 disclosure obligations.

8 Now, with regard to these pending motions, is there any submission

9 at this point of our conference? If this is not the case, we can continue

10 with the status of various disclosure issues.

11 The first point refers to Rule 66(A)(i) material. This is

12 material supporting to the indictment. This also has been discussed in

13 the pre-trial -- 65 ter Conference. We have been informed that the

14 Defence had some difficulties to bring DVDs and CDs to the accused or had

15 to submit such material for inspection at the United Nations Detention

16 Unit. Understand the Defence counsel's concerns that it might infringe

17 the confidentiality stemming from the counsel/client privilege. As you

18 may remember, the senior legal officer stated this needed to be resolved

19 through further discussion, and I would like to tell you that the senior

20 legal officer has the full support of the Trial Chamber to find a

21 solution, an arrangement with the Registry, in particular with the

22 Detention Unit, which may be -- satisfy your concerns.

23 Now, in with regard to this material, I would -- as the Pre-Trial

24 Judge I would like -- I would set a deadline for the completion of the

25 translation of additional supporting material as Rule 66(A)(i) provides

Page 128

1 for very strict deadlines in this regard. I intend to set a deadline for

2 completion by the end of January 2006, and I think that's quite serious.

3 The accused should be made -- should be put in a position to collect this

4 material in an understandable way as soon as possible.

5 There is a submission from the Prosecution?

6 MR. SAXON: Simply a question for clarification, Your Honour.

7 There is a portion of supporting material that supported the recent

8 amendments to the indictment that is now being translated by the CLSS, the

9 Registry's Translation Unit. The CLSS, I believe, has made inquiries as

10 to whether the entire body of that supporting material, which is hundreds

11 and hundreds of pages, must be translated into the language of the accused

12 or whether it is only the relevant portions of that original material that

13 were designated by the Prosecution as supporting its theory that the armed

14 conflict in Macedonia in 2001 continued through September of that year.

15 The difference in terms of labour and time, of course, required by CLSS to

16 do this work will be substantial depending on the direction of the Trial

17 Chamber. I would simply request respectfully that the Trial Chamber

18 clarify that point if it could.

19 JUDGE ESER: We will do so. I think at this point now it would be

20 -- I would like to avoid a quick decision. I would like to go into this

21 issue and to inform the Prosecution and the parties, of course, as soon as

22 possible on this point.

23 Now we come to the next issue, material with regard to Rule

24 66(A)(ii), so-called witness statements' material. We have been informed

25 that the Prosecution will call I think about 125 witnesses in total in a

Page 129

1 chart which had been presented in the 65 ter meeting. I think also to the

2 Defence, which I think is very helpful, to get an idea what's going on.

3 We have already been informed that witness statements of 104 witnesses,

4 that runs up to 80 per cent of the total statements, are already disclosed

5 both in English and Macedonian. Indeed you are working very hard on this

6 issue.

7 MR. SAXON: Your Honour, pardon the introduction. We have an

8 updated chart if Your Honour would so like to receive since there has been

9 additional disclosure.

10 JUDGE ESER: Thank you. Yes. Would you also have copies for the

11 Defence.

12 MR. SAXON: Yes, we do, Your Honour. If Mr. Usher could provide

13 them.

14 JUDGE ESER: Okay. There have been five Macedonian translations

15 outstanding, and these seem to be translated in the meantime.

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

17 JUDGE ESER: So I hope that the Defence can agree with me that the

18 Prosecution is trying to do its best. Okay.

19 Now, as the Pre-Trial Judge, I would like to include in the

20 Scheduling Order a deadline for the completion of this -- this list. Wait

21 a minute. I will also issue a Scheduling Order setting a deadline for the

22 completion of this 66(A)(ii) disclosure, and this order will require a

23 continuation of disclosure of new statements in English and Macedonian on

24 an ongoing basis, and completion of this process by the end of March. And

25 please believe me, this deadline is not just taken arbitrarily but, since

Page 130

1 case should be ready for trial as soon as possible, we think there should

2 be some -- some effort put into completing this exercise.

3 Mr. Saxon. You have --

4 MR. SAXON: Thank you, Your Honour. The Prosecution takes note of

5 the date mentioned by the -- by Your Honour, and we will work a hundred

6 per cent of our efforts to meet that deadline. I would just like to note

7 one potential caveat and that is simply that, with regard to disclosure of

8 all statements in the language of the accused, in this case Macedonian,

9 oftentimes the CLSS unit is under tremendous pressure, not only of course

10 from this case but from the demands of many other cases, and it may at

11 least certainly be within the realm of possibility that some translations

12 may not be available until beyond the 31st of March, but certainly the

13 Prosecution will do everything in its power to ensure that all statements

14 in English that all counsel can understand and read will be provided to

15 the accused prior to the end of March, and any translations of those

16 statements in Macedonian as well.

17 JUDGE AGIUS: Of course as nobody -- the Prosecution as well

18 cannot be asked to do the impossible, but you should be -- really take all

19 efforts, and I understand you said you would do it, to finalise this

20 exercise by the end of March.

21 Is there anything from the Defence side to this point now? It

22 doesn't look like it.

23 Now we come to Rule 65 ter(E)(iii) which concerns exhibits and

24 objections to the authenticity made by the Defence against certain

25 exhibits.

Page 131

1 Out of -- as I have been informed from the 65 ter meeting, out of

2 309 exhibits on the exhibit list, 25 exhibits are yet to be translated in

3 Macedonian and 284 exhibits are disclosed both in English and Macedonian.

4 And here again we have a very helpful chart from the Prosecution, exhibits

5 on Rule 65 ter list, where you can also see the numbers I just gave to

6 you.

7 As Pre-Trial Judge, I will include in the Scheduling Order all the

8 deadline of the completion of the exhibit list. This deadline will be

9 identical as for the completion 66(A)(ii) list. So the Prosecution is

10 required to update its exhibit list by the end of March 2006. And I would

11 like to add the Prosecution is required to include in that exhibit list

12 all the exhibits that may form part of any expert reports the Prosecution

13 intends to have produced.

14 Now I would come to Rule 68 material, so-called exculpatory

15 material which is of particular importance, of course, for the Defence,

16 meaning that if the Prosecution comes over material which may mitigate or

17 even give indications for innocence of the accused, this should be

18 disclosed to the Defence. This question again has been has dealt with in

19 detail in the 65 ter Conference. I was informed that the Defence has

20 certain problems in getting along with EDS, to use all the possibilities

21 which may be available by using EDS, but that the Prosecution is willing

22 to cooperate with the Defence in terms of the search training on EDS.

23 So what I would like to confirm is the following: First, that I

24 was informed about the progress being made in this respect, also on the

25 completion of the present 68 searches undertaken by the Prosecution, I

Page 132

1 will include a deadline for completion in the Scheduling Order which I had

2 mentioned before.

3 Now, having gone through the disclosure issues, are there any

4 other issues that the parties what like to include under all 65 ter, 66,

5 or 68. Mr. Saxon?

6 MR. SAXON: Again, Your Honour, just a point of clarification when

7 you refer to the completion of the Prosecution's disclosure work pursuant

8 to Rule 68. The Prosecution takes its obligation under this Rule very

9 seriously and in our response to the accused Boskoski's motion regarding

10 Rule 68, we've laid out I think fairly clearly the efforts we're making in

11 this regard. However, of course, Your Honour used the word "completion,"

12 and, of course, as you know, the language of the Rule refers to the

13 ongoing obligation, and we are working well, I think, with the -- with

14 Defence counsel. Just today we had another meeting with the counsel for

15 the accused Boskoski, and we received a letter from the accused Boskoski

16 that dealt with sort of an additional request for material that might

17 result in indeed more, possibly more, exculpatory material.

18 So I'm just raising this as a point of clarification to understand

19 what will be -- when the Chamber using the word "completion," what is the

20 scope of that term within the Chamber's understanding? Thank you.

21 JUDGE AGIUS: I'm very grateful, Mr. Saxon, that you mentioned

22 this issue. I think the term "completion" in this context may not be the

23 best one. It maybe understood, particularly because it is really an

24 ongoing process, and what is meant it what you should of course -- there

25 is a great bulk of material which has to be disclosed very soon, but as

Page 133

1 soon as you are -- as soon as you become aware of material you should digs

2 close it as your earliest convenience.

3 MR. SAXON: Absolutely, Your Honour, and the Prosecution I tends

4 to do that. With respect to the 145 searches that the Prosecution is

5 currently undertaking for potentially exculpatory material, the

6 Prosecution believes that those searches will be completed by the end of

7 February. Some of them have been completed already, as you know, and any

8 additional then material identified as relevant or exculpatory from those

9 searches will be disclosed to the accused by the end of March.

10 JUDGE ESER: That may be the issue that the -- perhaps the Defence

11 may not be completely aware of this. Sometimes it can really happen --

12 just a minute. It can happen after the Prosecution have thought they have

13 disclosed everything, then they find something else, and then -- of

14 course, the Prosecution may say there was a violation of 68, but if the

15 Prosecution comes up with newly found material which it wasn't able to get

16 hold of earlier, you could not so easily consider it a violation of Rule

17 68.

18 Now, you wanted to take the floor?

19 MS. RESIDOVIC: [Interpretation] Thank you very much, Your Honours.

20 The Defence of Mr. Boskoski hereby confirms that from mid-November the

21 Prosecution last been in compliance with their obligation under this rule.

22 They have started disclosing to us material uncovered by them through

23 their searches. We fully understand this is a continuous obligation on

24 the part of the Prosecution and that they will comply with it the

25 throughout the proceedings.

Page 134

1 Another issue you brought up are the problems that we encountered

2 with the EDS system. We discussed this issue during our 65 ter

3 Conference, and we wish to repeat it in front you will now, Your Honour,

4 that the searches we have conducted on the EDS system so far and all our

5 attempts at finding exculpatory material have not yielded any results so

6 far, for the simple reason this is the first case of the events dealing

7 with regards in Macedonia and there is no material about it available on

8 the EDS. We hope that the Prosecution will put a large amount of material

9 on the EDS system so that we can conduct searches ourselves.

10 In relation to this issue, we have talked to the Prosecution, as

11 my learned friend has already stated, and we have discussed some other

12 issues, namely our request pursuant to Rule 68. The Prosecution confirmed

13 to us that they have four Albanian cases and that they will use that

14 criteria and another criteria to conduct searches. They also confirmed to

15 us that they have material related to international organisations which

16 were present in Macedonia during the relevant period of time. However,

17 the OTP told us that they would not disclose the entire material of that

18 nature but only those portions which either, in their view, fall under

19 Rule 68 or, two, which do not have any limitations under Rule 68(i) which

20 do not have any limitations under Rule 70.

21 In view of that, Your Honour, we wish to inform you that we will

22 file a motion requesting disclosure of that material under Rule 66(B),

23 because it's undisputable that the Prosecution has this material, and the

24 Defence will state the reasons it believes that this material is of great

25 importance for the preparation of our Defence.

Page 135

1 Another issue: Nearly relating to Ljube and the time frame

2 referred in the indictment are not the only issues that we will require

3 disclosure of material, because we want material pertaining to the entire

4 situation in Macedonia, all of the events taking place there which are

5 covered by the entire context of the indictment, from January to

6 September, as is stated in the new amended indictment.

7 The Defence is interested in all of that material, and we have

8 told the Prosecution about that and told them that we would soon be filing

9 a motion under Rule 66(B). Thank you.

10 JUDGE ESER: Thank you very much.

11 You would like to respond to it directly?

12 MR. SAXON: Yes, Your Honour, very briefly. As of the close of

13 business Friday, 9 December, three days ago, I'm told that the entire

14 evidentiary collection of the Office of the Prosecutor related to events

15 in Macedonia, about the exception of Rule 70 material and sensitive

16 witness statements, will be available on the EDS. So it should now be

17 available and hopefully the searches of Defence counsel will be much more

18 productive starting today.

19 Related to the point that Ms. Residovic raised that they will soon

20 be filing a motion under Rule 66(B) because it is undisputable that the

21 Prosecution -- that was Ms. Residovic's word, or what I heard in

22 translation, the Prosecution will certainly honour any valid request,

23 request with a legitimate legal purpose and will seek to find any such

24 material it has in its collections pursuant to such a valid request of the

25 Defence.

Page 136

1 We would ask simply that such requests be as specific as possible

2 to enable the Prosecution to search for these materials and disclose them

3 as efficiently as possible.

4 JUDGE ESER: Thank you very much. Without saying a final word on

5 this, with regard to the problems with EDS, I would like to make clear two

6 points with regard to the -- how to make -- do it. You may be aware that

7 I'm of a generation where we have not yet been so firm in doing things

8 like this. I cannot give you any assistance. I have to completely rely

9 on other people. And I am glad if I understand at all what's going about.

10 But I am quite sure that the assistance which is offered to you from the

11 Prosecution will help you in this record.

12 The more legal problem, of course, is the issue which has been

13 addressed from your side, Mr. Saxon. I think you are clear about the

14 position of this Chamber that it is not enough just to say now you have

15 all the -- to say to the Defence, "Now you have everything on EDS and look

16 how you get around with it." There is a -- 68(ii) contains an obligation

17 on the Prosecution side to identify material which may be exculpatory.

18 Now, I -- what I think and I had the impression that you also wanted to

19 say it this way: The Defence may submit their motion, and you should be

20 indeed as clear as possible, as specific as possible, to make it easier

21 for the Prosecution what you are asking for and then we have to find a way

22 which is satisfying to both sides.

23 MR. SAXON: Your Honour.

24 JUDGE ESER: Mr. Saxon.

25 MR. SAXON: Your Honour, the Prosecution fully understands the

Page 137

1 position of the Trial Chamber on this issue, and that is why, for example,

2 if you look at the pie chart number 3 that was provided to the Chamber

3 last Friday, you will see in graphic detail the fact that the Prosecution

4 is not solely relying on the fact that there is an electronic disclosure

5 system available for the use of the accused. On the contrary. We have

6 initiated searches of over 145 separate terms across the OTP's evidentiary

7 collections. We have completed some of those searches and the reviews of

8 some of that material, and we have provided material that was specifically

9 identified in those searches, to 35 of those such searches already to the

10 accused.

11 It is the Prosecution, then, in this case is simply taking the

12 position that certainly the availability of the EDS, electronic disclosure

13 system, makes it possible for the Defence -- for Defence counsel to locate

14 material on their own because there is always the possibility quite

15 frankly, particularly with differences in language, that the Prosecution

16 to miss something. And this is a way of making as much material possible

17 available and accessible to the accused.

18 JUDGE ESER: So just to make it clear and I have the impression

19 that we agree on this point, it was not your position to say since you

20 have EDS it is your job and we are relieved of all obligations. You say

21 the Defence may on their own also try to find out as much as possible what

22 may be important for them.

23 MR. SAXON: That is exactly the position of the Prosecution, and

24 quite frankly, Your Honour, in the interests of protecting the fair trial

25 rights of the accused, we would encourage the Defence to make use of the

Page 138

1 electronic disclosure system, because, quite frankly again, they may find

2 this material more quickly than the Prosecution do.

3 JUDGE ESER: I think you got this point. I mean, you also have to

4 realise from the Defence that, assuming that the Prosecution is always

5 acting in good faith, even if they are acting in good faith there may be

6 material that to them, to their judgement, may not appear mitigating but

7 it may appear mitigating from your position, I think, for this reason. I

8 think it should be your own interest also to get into this material and if

9 you identify something to get hold of it.

10 Yes.

11 MR. GODZO: [Interpretation] Thank you, Your Honour. We have fully

12 understood the position of the Prosecution and the position of

13 Your Honour, and in this context I would like to indicate that so far the

14 Defence and the Prosecution in their regular communication which we have

15 had with several briefs and motions we have requested. A specific

16 material which is of exculpatory character according to the Rule 68.

17 In this respect, in our regular meetings, as today and in future,

18 we have discussed which materials -- material could be a material

19 according to 68 Rule, and in future we are aware of our obligation to

20 communicate with the Prosecution, and if the Defence has any knowledge of

21 a material could be in the Prosecution files and which could have an

22 exculpatory nature, we would like to reserve right, and it will be our

23 duty to request such materials from the Prosecution, and we believe that

24 they would be responsive and that they will fulfil their obligation.

25 Thank you.

Page 139

1 JUDGE ESER: So to come to an end with this point, we -- you are

2 awaiting or expecting some motion from your side in this area. Thank you.

3 Now, the next point I would like to address is the problems of

4 Rule 92 bis statements. This Rule deals with the proof of facts other

5 than oral -- by oral evidence, or you could say proof by way of

6 introducing by way of written statements. So far 53 witness statements

7 will be presented under Rule 92 bis. The Prosecution stated in the

8 Pre-Trial Conference that it was preparing a Rule 92 bis motion providing

9 more than 40 witness statements. Also, it wanted to wait for such a

10 filing until a Bench would have been appointed that would hear the case.

11 But as has been indicated by the senior legal officer, the Bench thinks

12 you should not wait until the Trial Bench is finally appointed. And I

13 concur that the Prosecution is to file more than one motion pursuant to

14 Rule 92 bis in order to allow the Defence and the Chamber to properly

15 prepare for a response and decision to such motions.

16 Before I continue, would you like to make a submission in this

17 respect or -- because you seem to -- wanted to speak.

18 MR. SAXON: I don't mean to interrupt, Your Honour.

19 JUDGE ESER: So in the Scheduling Order, I will indicate that a

20 first 92 bis motion needs to be submitted in the course of January, and

21 the last motion again before the end of March 2006 upon completion of Rule

22 66(A)(ii) disclosure. That would be the position of the Chamber.

23 Now, are there any other matters either party wish to raise on

24 this subject apart from what has already been discussed at the Rule 65 ter

25 Conference? If this is not the case, I would come to Rule 94 bis

Page 140

1 statements which concerns testimony of expert witnesses.

2 If I include the updating by the Prosecution, there will be four

3 expert witness statements presented under Rule 94 bis. Also, the filing

4 of expert reports will be included in the Scheduling Order. I intend to

5 order that to have all expert reports submitted by the end of March of

6 2006 in English subject to translation into Macedonian as soon as possible

7 thereafter.

8 Is there any reaction from the parties in -- with regard to this

9 issue of testimony of expert witnesses? This doesn't seem to be the case.

10 So I come to the question of length of trial and planning of trial.

11 As you have become aware, the original plans of starting this

12 trial even by the end of this year has been -- this plan has been

13 superseded by a different scheduling of the Tribunal by taking the Martic

14 case and giving the Martic case precedence over the Boskoski and

15 Tarculovski case. And as you remember, the main reason has been that the

16 Martic case has been much longer dealt with in this court and that the

17 defendant -- the accused is detained for a much longer time than the

18 present accused, and for this reason the Martic case had to take

19 precedence. But nevertheless, the Trial Chamber and the Tribunal is very

20 much interested to get this case ready as soon as possible, probably in

21 late spring, May or June, and this means that having this state in mind

22 the pre-trial briefs also have to be presented accordingly, and this will

23 also be dealt with in the Scheduling Order.

24 Now, if I may sum up what we have discussed and what we have

25 agreed about and if not finalised how we could proceed, I would like to

Page 141

1 give you the following points: First, I will soon issue a Scheduling

2 Order setting a number of deadlines for the Prosecution to further

3 complete their preparations for trial. Once these deadlines have been

4 met, it will be time to set a deadline for the preparation of a pre-trial

5 brief by the Defence.

6 Secondly, the Prosecution will be ordered to complete their

7 further preparations for the trial in the course of March and some parts

8 of it even before that. I think I don't have to go into details.

9 Third, the parties will be ordered to negotiate proposed agreed

10 facts during the course of April and May.

11 And fourth, by the end of May or early June, the pre-trial brief

12 of the Defence will be due. And I think that gives you enough time really

13 to have a thorough and solid pre-trial brief which takes care of all the

14 concerns your clients may have.

15 Now, are there any other comments either party wish to make on the

16 scheduling for the pre-trial procedures and the planning of the trial

17 apart from what has already been discussed at the Rule 65 ter Conference?

18 There is no request for doing so.

19 And so finally do any of the parties wish to raise any other

20 matters? This is not the case.

21 And now I would like personally to address the accused.

22 Mr. Boskoski and Mr. Tarculovski, would you like to raise any matter

23 relating to your state of health or your condition of detention? And

24 before you start to say something, you should be advised once more this is

25 not the place to raise any issues with regard to the indictment and so on.

Page 142

1 There are two questions which may be dealt with now, the state of your

2 health and if you have any complaints with regard to the condition of the

3 detention.

4 Mr. Boskoski, would you like to take the floor.

5 THE ACCUSED BOSKOSKI: [Interpretation] Your Honour, I have to say

6 that the conditions in the new building where we have been transferred now

7 since several days ago are quite good, that it is incomparably better than

8 in the building where we used to be.

9 Our health status -- at least my health status is fine. I think

10 that psychologically and physically I'm sustaining and I expect that the

11 trial will start as soon as possible so that I am able physically and

12 psychologically fit to defend my innocence and the innocence of my home

13 country Macedonia. Thank you.

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

15 Mr. Tarculovski.

16 THE INTERPRETER: His microphone is not on, Your Honour.

17 JUDGE ESER: He has it on now. Your microphone. Does it work

18 now?

19 THE INTERPRETER: No. We don't hear him.

20 JUDGE ESER: Could you raise it as much as possible or -- perhaps

21 you start and if you cannot be heard --

22 THE INTERPRETER: Yes, that is fine now.

23 JUDGE ESER: That is fine.

24 THE ACCUSED TARCULOVSKI: [Interpretation] Your Honour, my health

25 situation is also fine. I don't have any problems. But the comments --

Page 143

1 the problems we feel we have in the detention, we have the same from since

2 we arrived here. For nine months we have submitted at least ten motions

3 to have our Macedonian television broadcasted in the prison, because all

4 the other detainees have the opportunity to follow their own TVs apart

5 from us. We feel discriminated in comparison to others. And we have some

6 small problems regarding our requests, motions -- requests we don't have

7 in our own language, requests for visits, for interviews or -- we --

8 they're not translated into our native language. Thank you.

9 JUDGE ESER: Thank you very much. I was not aware of this

10 problem. As you know, I personally cannot do very much about this

11 language or translation or TV problems.

12 THE ACCUSED TARCULOVSKI: [Interpretation] Your Honour, there was a

13 representative from the court some two or three months ago. We personally

14 discussed it with him and we emphasised this problem that we were facing,

15 and we were told that as soon as possible, possibly within a month, we

16 would be accommodated with the TV, but this has -- for nine months already

17 we are waiting. We have submitted more than ten requests maybe, or more.

18 JUDGE ESER: Although I have do not have jurisdiction with this

19 question, I will personally address the registrar and ask what personally

20 can be done about it.

21 But I have to inform you of your formal rights. If you have any

22 complaints with regard to detention, pursuant to Rule 65 of the Rules --

23 85 of the Rules of Detention, you have a complaint procedure and you may

24 use this in order to get settled any concerns you may have.

25 Thank you very much.

Page 144

1 Now, there seems to be no further issue to be dealt with now.

2 Since we are rather close to the end of this year, I would like to wish

3 everybody good season's greetings. Of course we are aware that the

4 conditions are different for those of you that are in the position of an

5 accused than the other ones, but nevertheless I also hope that you can

6 celebrate these days with some confidence in the New Year.

7 So best wishes to all of you, and with this I would like to

8 adjourn our meeting, our conference. Thank you very much.

9 --- Whereupon the Status Conference adjourned

10 at 5.12 p.m.