Tribunal Criminal Tribunal for the Former Yugoslavia

Page 190

1 Tuesday, 12 December 2006

2 [Open session]

3 [Status Conference]

4 [The accused entered court]

5 --- Upon commencing at 2.22 p.m.

6 JUDGE PARKER: Good afternoon to everybody. We meet in most cases

7 for the first time.

8 I would ask the registrar to call the case.

9 THE REGISTRAR: Your Honour, good afternoon. The case number

10 IT-04-82-PT, the Prosecutor versus Boskoski and Tarculovski.

11 JUDGE PARKER: Thank you very much. Now, I take it that each of

12 the accused can hear what is now being said in a language they understand?

13 I expect Macedonian. I see both nodding agreement. Thank you.

14 Could I ask first for appearances for the Prosecutor. Mr. Saxon.

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

16 colleagues, Mr. Anees Ahmed and Ms. Angel Langenberg.

17 JUDGE PARKER: Thank you very much, Mr. Saxon.

18 Now, for Mr. Boskoski. Ms. Residovic.

19 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honour. I am

20 the Defence counsel of Mr. Boskoski and together with Mr. Guenael

21 Mettraux, Dragan Godzo and Jesenka Residovic who is the legal assistant

22 and case manager of our team. Thank you very much, Your Honour.

23 JUDGE PARKER: Thank you very much, Ms. Residovic.

24 And for Mr. Tarculovski. Mr. Apostolski.

25 MR. APOSTOLSKI: [Interpretation] Good afternoon, Your Honour. For

Page 191

1 the accused Tarculovski, the counsel Antonio Apostolski.

2 JUDGE PARKER: Thank you. I'm sure that all will be aware of the

3 order of the 23rd of November appointing me as the Pre-Trial Judge in this

4 matter together with two of the Judges who previously formed the

5 Trial Chamber, and we come together today I believe for the fifth Status

6 Conference. The object of a Status Conference, if I could remind those

7 here, especially the accused, is to organise the pre-trial exchanges

8 between the parties, if organisation is needed; to ensure the speedy

9 preparation for trial; and to allow issues to be raised by any parties,

10 especially the accused, relating to matters of concern; and also to enable

11 the accused to raise matters concerning their mental or physical

12 condition, if there are any such issues.

13 Now, there are items that have been noted down as requiring either

14 mention or further submission or attention. The first of those is the

15 matter of Defence counsel. The position, if I could ask you,

16 Ms. Residovic, in respect of assistant counsel, are you in a position to

17 tell me at what stage you are at there?

18 MS. RESIDOVIC: [Interpretation] We've already put forward the name

19 of Mr. Guenael Mettraux for co-counsel; we made that proposal to the

20 Registry. At the moment, we are awaiting the decision by the Registry.

21 Thank you.

22 JUDGE PARKER: Thank you. There may be a possibility for

23 Mr. Mettraux to supplement the information before the Registry as to his

24 formal qualification, either as professor or as a practising lawyer to

25 overcome some uncertainty. That may be something that could usefully be

Page 192

1 discussed with the Registry before you leave The Hague now. I'm sure if

2 further assistance could be given, it could speed up the decision process.

3 MS. RESIDOVIC: [Interpretation] Yes, thank you, Your Honour. We

4 are going to do so today and we'll provide all the additional necessary

5 documents following this Status Conference. Thank you.

6 JUDGE PARKER: Thank you very much.

7 Now, for Mr. Boskoski, Mr. Apostolski, it's not clear what

8 position you have reached with respect to assistant counsel. Could you

9 help me there, please?

10 MR. APOSTOLSKI: [Interpretation] Your Honour, I have proposed a

11 co-counsel, Pavce Neftenov, who has been by the Registry required to pass

12 an additional exam for the knowledge of foreign language and at this

13 moment, that's the status of this matter and we are negotiating with

14 several other colleagues that fulfill the requirements to be co-counsels

15 and during the month of January we will be able to appoint a co-counsel,

16 in any event.

17 JUDGE PARKER: Thank you for that. I take it from that, then,

18 that neither Defence teams see the issue of co-counsel as one that will

19 provide any impediment to the trial getting underway during the first half

20 of next year.

21 The next issue is that of translation of materials and language of

22 trial. I think -- I believe I come back to you again, Ms. Residovic, with

23 respect to language at trial firstly.

24 MS. RESIDOVIC: [Interpretation] Mr. President, we've already

25 raised that issue during the last Status Conference and the Judge told us,

Page 193

1 invited us to continue our discussions with the Registry and encouraged us

2 to try and find a solution that would comply with the rights of my client

3 and that would also meet the requirements, the technical requirements here

4 at the Tribunal.

5 We've already had discussion with Ms. Nikolic who is the head of

6 the interpretation unit. We also had a discussion with the head of OLAD

7 and with the Deputy Registrar yesterday, and we wrote a letter listing our

8 main arguments relating to this matter. They are as follows: First of

9 all, our client speaks two languages, his mother tongues, he has a dual

10 nationality, in other words, he chose counsel that speaks his own

11 language, that is to say, one of his mother tongues. My client is from

12 Macedonia, he speaks Macedonian, of course, but he's also a Croatian

13 citizen and speaks B/C/S. And for that reason, I believe that if you look

14 at Article 21 of the Statute, he has the right to have counsel that speaks

15 his own language because it is stated in this article that he is entitled

16 to receive a translation of what is said by anybody in the courtroom who

17 doesn't speak his own language. But I'm his counsel. I speak his

18 language, and therefore, it is not necessary for anyone to translate what

19 I say to him.

20 It's a right that he has, and it's a right that has been invoked

21 in previous cases before the Tribunal. Mr. Aleksovski also was of

22 Macedonian origin. The case was closed many years ago and Croat was used

23 in his case before the Tribunal therefore the case is not new.

24 Furthermore, we stated in the letter to the Deputy Registrar that when I

25 use my own tongue, my own mother tongue, my own language, I can be more

Page 194

1 specific when I ask questions and when I make comments. I can communicate

2 better with all the witnesses and with all those present in the courtroom

3 and this could enable the trial to go faster and this could be a way to

4 speed up the proceedings once the trial starts. This will in no way cause

5 a burden to the budget of the Tribunal and -- but since this question

6 is -- this matter is still under discussion, I believe that we'll inform

7 you as soon as we've reached a solution with the Registry. Of course, if

8 there's a problem, we'll file a motion with the Chamber to ask the Chamber

9 to rule on the matter.

10 JUDGE PARKER: You have given a written submission now to the

11 Registry, have you?

12 MS. RESIDOVIC: [Interpretation] Yes, I wrote a letter to the

13 Registry and we are waiting for the decision by the Registry. I don't

14 think that this is going to make any problems because once, when I spoke

15 with Ms. Nikolic about the matter, she said that we can find a solution to

16 technical problems quite easily, and it doesn't need to cost a lot of

17 money either.

18 Let me give you an explanation about this. I understand the

19 Macedonian language rather well. It's a passive language for me. I can

20 understand also the English when I read it on the screen, and I can also

21 understand French. Therefore, the only thing we need here is for B/C/S to

22 be translated from -- into English or into French, but when other people

23 speak Macedonian or English or French, none of this need to be translated

24 into B/C/S for my benefit. The only thing that we need is for me, when I

25 speak B/C/S, there needs to be a translation of what I say into English or

Page 195

1 into French. That's the only problem that needs to be solved.

2 JUDGE PARKER: You seem to have a considerable facility in French,

3 if I might respectfully say so.

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

5 But of course when you speak your mother tongue, you can speak faster and

6 better than when you speak a foreign language. But first of all here, we

7 are not talking only about my right and my obligations, we have to think

8 of the rights of accused who need to be able to listen to me in his own

9 language and thus he will not need to wait for what I say in French to be

10 translated into Macedonian or into Croatian. Therefore, when I speak to

11 the witnesses, to the Judges, or to anyone else, then if I speak in B/C/S,

12 then you will be able to understand me immediately without interpreters

13 having to translate what I say.

14 Furthermore, this could have another consequence because everyone

15 in Macedonia, even the Macedonians or the Albanians, those who can listen

16 to us on the Internet or otherwise, those who can listen to the

17 proceedings will be able to understand me because in Macedonia and in all

18 the other countries of the former Yugoslavia, everybody can understand

19 B/C/S, everybody can understand me, and doesn't need any translation of

20 what I say in their mother tongues.

21 So if we take that solution, this would have a further impact and

22 would further the idea of a speedy and fair trial more so than if I were

23 to speak French in this -- in these proceedings. Thank you very much,

24 Your Honour.

25 JUDGE PARKER: Well, thank you. The matter presently is before

Page 196

1 the Registrar. I haven't had to sit down and worry through the issue

2 myself yet, but I just comment that I wonder whether you are not sliding

3 together two separate issues when you say the right of the accused to have

4 counsel of choice and right of the accused to hear his counsel in his own

5 language. He has a right to be able to hear in his mother tongue or to

6 have a translation into his mother tongue. Your submissions do seem to

7 obscure that difference but for me at the moment, I don't have to worry

8 about that, that can wait. The Registrar will be dealing with it and

9 clearly you now have put your position to the Registrar and we will await

10 his decision shortly.

11 One way or another, it's clear that it will be necessary for,

12 either by interpretation or otherwise, the accused to be aware of what

13 occurs in the proceedings and for you to be able to conduct your case.

14 I'm sure that will be managed in some useful way.

15 Thank you on that.

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

17 JUDGE PARKER: Now, the translation of documents, perhaps I could

18 ask you, Mr. Saxon, do you see any such issues presenting difficulty in

19 the final stages of preparation of this case?

20 MR. SAXON: Your Honour, based on what the parties were informed

21 yesterday, that the Chamber is planning on starting this trial either in

22 the end of March or in the beginning of April, at this moment, the

23 Prosecution does not foresee a problem.

24 We are still awaiting the translation from Macedonian to English

25 of several hundred pages of documents that were originally in the

Page 197

1 Macedonian language. They are now with the representatives of CLSS;

2 however, CLSS has told us that this work should be complete by the end of

3 February.

4 JUDGE PARKER: Are there documents that you have provided that

5 have to be translated into Macedonian, 68 ter documents?

6 MR. SAXON: I didn't hear the last --

7 JUDGE PARKER: Rule 68 disclosure documents.

8 MR. SAXON: I'm not -- it's never been the Prosecution's

9 understanding that under Rule 68, we have an obligation to translate

10 materials into Macedonian and quite frankly, we have not been translating

11 materials disclosed under Rule 68 into the language of the accused.

12 JUDGE PARKER: I was confused, I've got to say, by a comment made

13 to me following yesterday's proceedings about that. I think it's a

14 comment that was made by one of the Defence counsel, and it implied to me

15 that you were translating. Maybe he was indicating that their process of

16 translation is taking time.

17 MR. SAXON: It was my understanding yesterday, Your Honour, from a

18 comment made by one of my learned colleagues that their review and

19 translation of some of the material which the Prosecution has disclosed to

20 the Defence under Rule 68 is taking some time. Yes. That was my

21 understanding.

22 JUDGE PARKER: Thank you for that. So from your point of view,

23 your obligations can be met certainly by March.

24 MR. SAXON: Yes, Your Honour.

25 JUDGE PARKER: Thank you.

Page 198

1 Do either Defence teams see any difficulty with the process of

2 translation of materials necessary for trial?

3 MS. RESIDOVIC: [Interpretation] Yes, Mr. President. We mentioned

4 yesterday during the 65 ter Conference that CLSS informed us, once again,

5 on the 6th of December that they have limited capacities for translation

6 of documents from Macedonian into English and this is a concern for us.

7 We are concerned because we have a lot of documents to translate, first

8 documents which we have found during our investigations and also those

9 very important documents which the Prosecution conveyed to us through --

10 disclosed to us through Rule 68 and it was also mentioned that only 100

11 pages are translated per month and this is a bit dangerous for the

12 preparation of the Defence case, all the more so as among the documents we

13 have received from the Prosecution through Rule 68, we have documents

14 which are in Albanian and in German, of course those are not the documents

15 which will be used during the trial and these are not languages of the

16 accused or counsel, but this means that we will have to ask from CLSS a

17 translation from these documents because we don't even know whether these

18 documents are really pertinent or are really -- may be used really as

19 exhibits, exculpatory exhibits.

20 Another matter which we would like to request, Your Honour, is

21 that could you encourage or request from the Registry that he may ask the

22 CLSS to give a priority to all these documents which come from Defence,

23 because this will enable us to be better prepared for the beginning of the

24 trial.

25 Thank you very much, Mr. President, Your Honour.

Page 199

1 JUDGE PARKER: With respect to your last request, as I understand

2 the matter, the interpretation unit is gathering together its Macedonian

3 resources for this trial and that, naturally, is a process that takes time

4 and their capacities at the moment are somewhat limited. So I think there

5 is little point in making some sort of grand order that is beyond

6 realistic capacity to deliver.

7 From what I understand, the work is being dealt with as

8 expeditiously as possible at the moment, but what it means is we need to

9 be sure that it is completed before the trial starts so that you've had an

10 opportunity to familiarise yourself with it by that time. So thank you

11 for that.

12 Is there anything affecting the preparation of your case,

13 Mr. Apostolski, in this question of the translation of documents?

14 MR. APOSTOLSKI: [Interpretation] Your Honour, as has been

15 presented by my learned colleague Residovic, we do have some hundred

16 documents which are going to be given to CLSS for translation and I would

17 like to inform this Court that a large number of the documents we have

18 provided our own translation and we will try to provide, on our own

19 resources, to provide translation of these documents as much as we can.

20 Thank you.

21 JUDGE PARKER: Thank you.

22 The next issue is one of disclosure. Is there any aspect of that,

23 Mr. Saxon, that you see is yet to be completed and which may present a

24 problem for a commencement of the trial?

25 MR. SAXON: There are no aspects of disclosure which, in the

Page 200

1 Prosecution's submission, will affect the commencement of the trial.

2 There will be one additional witness statement disclosed this week

3 pursuant to Rule 66(A)(ii). And I need to inform the Chamber and the

4 parties of one other matter. As you can imagine, it's difficult for a

5 Prosecutor to acknowledge that a Defence counsel was correct on a

6 particular point.

7 JUDGE PARKER: Never, never, Mr. Saxon. Defence counsel are very

8 often correct.

9 MR. SAXON: I know they are, and yesterday one of them was correct

10 on a point in our meeting and I have to acknowledge that.

11 Ms. Residovic politely suggested that the Prosecution undertake

12 another review of its files to make sure it had no other witness

13 statements that it needed to disclose and this morning I discovered that

14 there is one remaining statement that the Prosecution will disclose today,

15 not under Rule 66(ii), not under Rule 68, but under Rule 66(B), Your

16 Honour. This is pursuant to a request that the counsel for the accused

17 Boskoski made one year ago today of disclosure of all witness statements

18 taken by the Prosecution in this case. That request was made pursuant to

19 Rule 68 but the Prosecution told the parties that it would take that

20 request or interpret that request as a request under Rule 66(B) and this

21 is one more statement that was taken recently. It was given by a person

22 who will not be called by the Prosecution as a witness however, we do feel

23 it falls under Rule 66(B) and we will disclose it today.

24 JUDGE PARKER: Thank you for that.

25 Perhaps I could start with Mr. Apostolski for a change. Is there

Page 201

1 any disclosure matter that is causing you concern at this stage?

2 MR. APOSTOLSKI: [Interpretation] Dear Judge, I believe that on the

3 part of the Prosecution, they have been -- had a proper attitude and they

4 are not disclosing more of the evidence but I hope that in that

5 direction -- so on our part there is no problem at all.

6 JUDGE PARKER: Thank you very much.

7 Now, Ms. Residovic, do you have any difficulty with disclosure?

8 MS. RESIDOVIC: [Interpretation] My perusing all the documents

9 which the Prosecutor disclosed to us up to now by Rule 66 or Rule 68,

10 certain problems were mentioned yesterday during the Conference 65 ter.

11 Here we wish to say only that we are -- keep strictly all the documents

12 which the Prosecution disclosed to us. For the list of exhibits and all

13 the exhibits of the Prosecution, we are going to propose certain decisions

14 to the Chamber to see that the possibility is given to have a fair trial.

15 We have found several scores of documents which do not correspond

16 to the case and we are therefore preparing proposals on this matter.

17 As for the exhibits, exculpatory exhibits which the Prosecution

18 disclosed according to Rule 68 mentioned yesterday, we said yesterday that

19 we think, by looking at all these documents, that the Prosecution has not

20 sufficiently reviewed these documents and disclosed documents which put us

21 in a position which we have to do his job. We have more than 30.000 pages

22 to review and being fully responsible for this, we are going to disclose

23 this to the Prosecution and if it becomes necessary, also to the Judges.

24 So this is the position we find ourselves in today.

25 JUDGE PARKER: Well, where does that leave us? I'm not quite sure

Page 202

1 what you were saying about the commencement of the trial. Is this going

2 to present a problem for a commencement in March or April?

3 MS. RESIDOVIC: [Interpretation] No. Everything will be ready.

4 Our proposal will be ready within a month and we are sure that all these

5 problems may be solved before that, and we will be ready for trial with

6 the dates which have been mentioned yesterday during the 65 ter

7 Conference. Thank you.

8 JUDGE PARKER: Now, the --

9 MR. SAXON: May the Prosecution respond, Your Honour?

10 JUDGE PARKER: Indeed, Mr. Saxon.

11 MR. SAXON: Just one point, perhaps, to try to try to make this

12 process more efficient. For the past year, the Prosecution has put the

13 Defence on notice that we were searching our evidentiary collections,

14 initially on 148 different search criteria to identify material falling

15 within the scope of Rule 68 for this case. Subsequently, we added three

16 more criteria, so the final -- the final number -- excuse me, we began

17 with 145 criteria. The number now is 148.

18 As I explained yesterday, the Prosecution is initiating updated

19 searches to make sure there is not additional material that might assist

20 the accused in the preparation of their Defence that has come into the

21 possession of the Office of the Prosecutor since our last process, which

22 ended about ten months ago.

23 It might be helpful for the Defence to review these search

24 criteria once more and inform the Prosecution whether they now feel that

25 some of these search criteria are no longer necessary, because if that

Page 203

1 were the case, that would certainly reduce the time and effort spent by

2 the Prosecution on this exercise and would certainly reduce the amount of

3 material subsequently disclosed to the Defence under Rule 68.

4 Thank you.

5 JUDGE PARKER: Thank you for that. I would simply ask that

6 Defence counsel give that consideration and if it were possible, to limit

7 the possible search fields. You will understand that would A, speed up

8 the process of searching, but more importantly, lessen the amount of no

9 longer relevant material that you would have to spend time on in your own

10 preparation. So it would assist your own work if there were some issues

11 that you were happy to put aside altogether in the search criteria

12 presently being pursued by the Prosecutor.

13 I turn now to the -- Ms. Residovic, yes.

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

15 accept this suggestion and we will look into the research criteria which

16 are necessary, but we have to do our duty and we have to be absolutely

17 sure that we do things correctly and we prepare the Defence of our client

18 in a fair way. But for this matter, once again, I have another question

19 which was mentioned yesterday and which I also mentioned during the last

20 Status Conference when we asked the Prosecution to inform us whether he

21 had finished the investigations in our case.

22 Last time, the Prosecution said very clearly, in front of

23 Judge Zanetta [as interpreted] and the last letter which was sent on the

24 8th of December, he told us as he did yesterday, during the conference

25 yesterday, that the investigations were continuing. So this means that we

Page 204

1 can't know very clearly today what is the situation of the Prosecutor.

2 Therefore, we are not really in a position to prepare in the necessary way

3 for the counsel who are responsible for the defence of their client.

4 Therefore, I am telling you that the Defence is very surprised

5 because on several occasions, the Prosecution told us that the

6 investigations were going on and the Security Council in its Resolution

7 1503 and the Prosecutor Carla Del Ponte mentioned several times in her

8 reports to the Security Council that investigations were over in 2004.

9 This is the reason why we would like to know really when the Prosecution

10 will stop these investigations and will communicate disclosed new

11 documents which have been found in these investigations after the

12 confirmation of the indictment. And, on the other hand, we are now in a

13 position to tell you that the way we understand our case is what we have

14 said in our pre-trial brief and we are going to prepare our defence this

15 way. And we are going to suppose [as interpreted] that each time the

16 Prosecutor will request or try to change, to alter the indictment or the

17 case or its case, or changing certain words or any -- in any other way,

18 this is something which -- this is a situation which is very difficult for

19 the Defence because we must know what is the case of the Prosecution.

20 Now, here, there is a mistake in the transcript, line 14, going to

21 oppose, we will oppose, not suppose, each time -- each time there will be

22 a request to alter the case. It's very clear that such situations -- it's

23 very important for our understanding, even of the duration of the case,

24 not only for the rights of the accused, not only to know exactly what the

25 case is and how it stands today, but also to know what will be the

Page 205

1 duration of the case once it has started.

2 And another matter about this situation, we are also expecting the

3 decision of the Appeal Chamber to see exactly what the case is, this is

4 very important for the Defence to know what are the measures which has to

5 be taken to prepare for the beginning of the case -- or the trial.

6 JUDGE PARKER: Thank you.

7 Could I indicate that the Chamber is aware of the pending

8 Appeal Chamber decision raising particular matters of jurisdiction and

9 naturally we expect that decision to have been delivered well before the

10 trial commences and proceedings in the trial will be in light of that

11 decision.

12 On the former matter, Mr. Saxon, do you want to put any

13 submissions?

14 MR. SAXON: If you will allow me, yes, Your Honour, very briefly.

15 Your Honour, it is the Prosecution's submission that

16 post-indictment investigations by the Prosecution are the absolute norm in

17 this Tribunal. They have occurred on every trial that I have been

18 involved with and I believe they have occurred on every trial that my

19 learned colleague Ms. Residovic has been involved in going back to the

20 Celebici case.

21 Ms. Residovic mentioned Security Council Resolution 1503. A

22 careful reading of that resolution, Your Honour, indicates that what the

23 Security Council was referring to in one clause where it said, "It calls

24 on the ICTY to take all possible measures to complete investigations by

25 the end of 2004." In that clause, it was referring to pre-indictment

Page 206

1 investigations. It was not referring to, Your Honour, any further

2 post-indictment work on factual and legal issues related to the

3 Prosecution's case. Certainly, the Defence has not provided any authority

4 to the contrary.

5 The Prosecution would respectfully direct the Chamber and the

6 parties to a decision of this Trial Chamber in Prosecutor versus Cermak

7 and Markac, case number IT-03-73, from the 19th of October, 2005,

8 paragraph 51 in which this Trial Chamber said: "The Chamber accepts the

9 Prosecution's submission that it may properly conduct ongoing

10 investigations against an accused after an indictment has been confirmed."

11 Indeed, Your Honour, Rule 2 of the Rules of Procedure and Evidence

12 define investigations as "activities undertaken by the Prosecutor whether

13 before or after an indictment is confirmed." That Rule certainly was not

14 changed after UN Security Council 1503 or the finalisation of the

15 Prosecution's indictments in the end of 2004.

16 JUDGE PARKER: Could I indicate, Ms. Residovic, I don't believe

17 there's need for any further submission. I well understand the

18 proposition you are putting.

19 The Security Council resolution to which you refer has generally

20 been understood and applied in this Tribunal as referring to those

21 investigations that lead to the institution of proceedings, that is, that

22 lead to the filing of an indictment to commence proceedings.

23 Although a similar style of language is used, there is a distinct

24 process that is undertaken in the course of a trial and that is a process

25 of ensuring that the information presented to the Chamber is correct at

Page 207

1 the time of its presentation, and it may well be that further inquiries

2 prompted by the course of the proceedings, what witnesses have said or

3 issues that are being raised by other counsel, will lead to the

4 identification of some additional witness or some additional point of

5 issue. When that occurs, it is necessary for the party, whether it be

6 Prosecution or Defence, that want to introduce something that is not part

7 of their pre-trial brief and disclosure - and this is especially so for

8 the Prosecution - it is necessary for that party to satisfy the

9 Trial Chamber that it is in the interests of justice that they be allowed

10 to introduce that additional material so that the trial proceeds at this

11 point on the basis of the case disclosed to the Defence in the pre-trial

12 brief and the disclosed material.

13 Should the Prosecution wish to vary that in some way by the

14 addition of a witness or an issue, or some amendment to the terms of the

15 indictment, the Prosecution must first satisfy the Trial Chamber that it

16 should have leave to do so and at that point, the consequences for the

17 Defence of introducing fresh material or some amendment to the indictment

18 is considered by the Trial Chamber and a decision is made whether or not

19 it is fair. It is in the interests of justice that that be allowed.

20 If it is allowed, there may be consequences for the Defence. You

21 may need to, yourself, then, investigate this additional issue. You may

22 have to look at the consequences of an amendment to the indictment, and

23 the Trial Chamber on application by the Defence will consider whether you

24 should have additional time to do that, what opportunity you need to be

25 given as a matter of fairness to enable you to prepare to meet this new

Page 208

1 element, and that way, the trial is kept fair even though there may be

2 some change.

3 I would just add that, somewhat as a novelty in this Tribunal,

4 this is expected to be quite a short trial. If a trial has gone on for

5 two years or maybe four years, there is quite a scope for change

6 occurring. If we are looking at a short trial, the scope for that is

7 obviously much more limited so that it's not likely, I would think, to be

8 an issue that will produce any great problem for the ongoing conduct of

9 the Defence case in a trial of this size.

10 I think what all parties recognise, and certainly it is the view

11 of the Trial Chamber in this case, the interests of both accused are best

12 met by getting this trial heard and determined as quickly as can be,

13 having given everybody a fair opportunity to present their case. And that

14 will be guiding the Trial Chamber in the conduct of the case. But for the

15 reasons I've indicated, some new point or points may arise in the course

16 of the Prosecution case. They must first satisfy the Trial Chamber,

17 having heard you, that they should be allowed to do so before the case can

18 proceed on the basis of the new information.

19 Does that assist you to feel a little more comfortable about the

20 fact that you may not know, at this moment, every possibility that could

21 occur in the course of the trial?

22 MS. RESIDOVIC: [Interpretation] Thank you, Your Honour. I've

23 understood your comments, thank you very much. But Mr. Saxon mentioned

24 one thing and let me -- allow me please to say two things. In this case,

25 the investigation has been going on since 2001 and went on from 2001 to

Page 209

1 the confirmation of the indictment. And as for the sources, Mr. Saxon

2 said that I did not mention any authorities, any sources. Let me say that

3 in my letter to the President of the Tribunal from 31st of May, 2006, or

4 rather in his letter to the Security Council on the 31st of May, 2006, the

5 President of the Tribunal, Mr. Pocar, stated very clearly that all the

6 investigations had been completed and in the report of Ms. Del Ponte

7 dealing with the situation in the Republic of Macedonia, it is stated

8 in -- and these are official documents, that the Prosecutor has completed

9 all investigations related to that country. Four cases are also mentioned

10 that were referred to the Prosecutor and the Prosecutor stated that all

11 had been completed.

12 This is the third case where I'm going to work as a Defence

13 counsel and I fully understand your comments, Your Honour, but still, the

14 Security Council has set some limits to the work of the Prosecution and

15 when I worked in the Hadzihasanovic and Celebici, this resolution had not

16 been passed at the time.

17 Thank you for allowing me to speak about the matter, Your Honour.

18 JUDGE PARKER: Well, thank you, Ms. Residovic. I don't think what

19 you have put would cause me to change anything that I have indicated.

20 Investigations leading to new indictments were closed pursuant to

21 the resolution and as reported to the Security Council. But, for example,

22 it is a right of an accused to be, right up to the end of the close of the

23 case and decision, to be informed of any exculpatory material that should

24 come to light in the hands of the Prosecutor. That often is a product of

25 ongoing investigation, if you can properly call it that, into the case

Page 210

1 being tried. So it is a matter that is in as much in the interests of

2 Defence as Prosecution that if new material that's important in the case

3 comes to light, the Prosecution has an obligation to disclose it and if it

4 wants to rely on it, it must then come to the Chamber which will hear the

5 Defence to see whether that should be allowed.

6 The process of agreement of facts I know is ongoing. Do you

7 expect there will be any significant further progress in that field,

8 Mr. Saxon?

9 MR. SAXON: I hate to use the word "expect," Your Honour, however,

10 I am always hopeful and optimistic, and the Prosecution has a meeting

11 scheduled with Defence counsel for Mr. Tarculovski to discuss this matter

12 later today and we also hope to be able to continue these discussions with

13 our friends, the counsel for Boskoski.

14 JUDGE PARKER: Well, thank you for that. I don't think I should

15 pry into the approaches being taken by Defence counsel at this point. I

16 would merely encourage both Defence counsel in the interests of an

17 efficient and speedy resolution of the case to look with fairness at the

18 question of agreement of facts.

19 The Chamber is aware that there are now a number of motions that

20 are awaiting decision, and they are in the course of consideration at the

21 moment, and they should be dealt with very early in the new year. You

22 should get your decisions in all of those matters, including the question

23 of expert reports, and the 69 or so Rule 92 bis statements that are the

24 subject of motions.

25 The timing of the trial, you've heard our expectation that it

Page 211

1 might be possible to commence the trial at the end of March or in the

2 first half of April. One or two things said today, especially by

3 Ms. Residovic would suggest to me that it might be better into April than

4 at the very end of March; just a little more time might be useful.

5 I would also, in frankness, indicate to you that the present trial

6 this Chamber is conducting will conclude in the first week of March. It's

7 a trial that's gone for well over a year and a decision has to be

8 prepared. So that we will be under tight time pressure during March, and

9 I expect into April, in preparing that decision.

10 I also noticed today that we encounter Easter at the end of the

11 first week of April so that putting those things together, it may be that

12 we should commence after Easter rather than get the case interrupted by a

13 holiday very early on in the beginning.

14 If there are no further submissions indicating difficulty with a

15 commencement in the course of the first half of April, I will simply move

16 on from there and a programming order will be made in due course which

17 fixes a firm starting date. But I understand from yesterday that no

18 counsel then saw any insurmountable problem to commencement in the first

19 half of April. Is that correct? Well, you can expect that that will be

20 the time indication given when an order is delivered.

21 I think there's little point at the moment in going over again the

22 question of how long the trial can be anticipated. You've each given

23 fairly -- well, certainly the Prosecution has given detailed indications.

24 The Defence seeks to know more, perhaps, about the case against it before

25 reaching any final view. Certainly it's appreciated that the motions

Page 212

1 concerning 92 bis statements will affect the length of the hearing, but we

2 seem to be looking at a quite short trial, by the normal standards in this

3 Tribunal. I commend counsel for their efforts to try and ensure that and

4 I can assure you that the Trial Chamber will approach the matter with a

5 view to dealing with the trial as efficiently and quickly as fairness will

6 allow.

7 Now, I should turn to each of the accused to ask, firstly of you,

8 Mr. Boskoski, whether there is any matter of health or any concern you

9 have about the condition of detention. I ask you directly. You may

10 prefer to have your counsel reply but I just ask you directly so that you

11 know you may speak if you wish.

12 THE ACCUSED BOSKOSKI: [Interpretation] Your Honour, at the outset,

13 I would like to ask from you an apology because the answer at the very

14 beginning with yes or no was demonstrated by a vertical nodding of the

15 head by which we have confirmed that we do understand that everything is

16 fine and all right with regard to the translation.

17 I believe and I hope that you will accept this apology because

18 there is a country in the neighbourhood where the nodding of head means

19 no. That's Bulgaria.

20 However, I would like to indicate that my health condition is

21 better, as you can see. I am well, and pleasantly in a good mood. I

22 believe the conditions in the detention unit are very good and decent.

23 The control is okay, and I do not have any specific objections. My health

24 condition, my mental and my physical condition are all right, and I -- I

25 believe I will retain such a condition.

Page 213

1 If you would allow me, I would like to express my gratitude to the

2 Prosecution in order to prove our innocence by giving us additional

3 materials and documents which will be exculpatory in non-existence

4 [as interpreted] of the accusations. My thanks again to them and to you,

5 Your Honour, and to the staff of the court and let me wish you a Christmas

6 and good Christmas season and New Year's Day to the Prosecution staff and

7 to the Prosecution itself. Thank you.

8 JUDGE PARKER: Thank you, Mr. Boskoski.

9 Mr. Tarculovski, do you have any concerns that you wish to raise

10 about the matters I've indicated?

11 THE ACCUSED TARCULOVSKI: [Interpretation] Everything is fine. My

12 health is okay. Everything is okay.

13 JUDGE PARKER: I just encourage the accused to keep fit and that

14 will help us in the process of the trial. Yes. Thank you very much.

15 I see, Mr. Saxon, that you have a motion for the admission of

16 exhibits. It's a long, and it's an old motion, 7th of November, 2005.

17 Does that ring a bell?

18 MR. SAXON: Your Honour, I have to be honest, it does not, but --

19 the 7th of November, 2005 is some time ago but I will certainly take your

20 word for it.

21 I've been reminded gratefully by my colleague as to the substance

22 of this motion. Yes, Your Honour.

23 JUDGE PARKER: Yes. Yes. Could I indicate that as a matter of

24 procedure, the -- if there are matters that are not objected to, just as

25 if there are facts which are agreed between the parties, the Trial Chamber

Page 214

1 would expect at the opening of the trial that those would be noted. The

2 exhibits received and a document recording the agreed facts would be then

3 received as an exhibit and marked as such, so that there is a complete

4 record in the trial process itself.

5 So if you could prepare on that basis. I see that there remain

6 still quite a number of exhibits which are the subject of a debate and

7 discussion between you and that list of matters that are not objected to

8 may well get longer in the time between now and the commencement of the

9 trial. But I just let you know, as a matter of procedure, that would

10 appear to the Trial Chamber the most convenient way of dealing with these

11 matters.

12 MR. SAXON: Very well, Your Honour, and if we make further

13 progress also regarding agreements on the admission of exhibits, we would

14 also produce a similar document then regarding such exhibits.

15 JUDGE PARKER: Yes. Very well. There are no other matters that I

16 would think need to be raised here. Do you see anything else, Mr. Saxon?

17 MR. SAXON: Very briefly, Your Honour, with your leave if we might

18 go into private session for one brief moment. It's a matter related to a

19 particular witness.

20 JUDGE PARKER: Private session.

21 [Private session]

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 215

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 [Open session]

19 THE REGISTRAR: Your Honour, we are back in open session.

20 JUDGE PARKER: Ms. Residovic, any further matter that you would

21 wish to raise?

22 MS. RESIDOVIC: [Interpretation] No, thank you, Your Honour.


24 Mr. Apostolski.

25 MR. APOSTOLSKI: [Interpretation] I would like to ask the Court to

Page 216

1 issue an order that it would be allowed to the Defence of

2 Mr. Johan Tarculovski so that our response on the filings of 92 ter be

3 prolonged for another seven days given that it's about a very

4 comprehensive material and the Defence of Johan Tarculovski's completely

5 here in The Hague, it's preparing for a week already for the trial both

6 and also for the -- our readiness for our presentation to the Court.

7 Thank you.

8 JUDGE PARKER: So you're seeking an extension of time to comply

9 with that until Wednesday the 20th?

10 MR. APOSTOLSKI: [Interpretation] Yes, Your Honour. By Wednesday,

11 20th, it will be all right.

12 JUDGE PARKER: Mr. Saxon, any submissions.

13 MR. SAXON: I've never been good at mathematics as my colleagues

14 can attest. I think-- I believe that these responses would be due

15 normally on the 20th, so if my colleague is seeking a one-week extension,

16 he's seeking an extension until Wednesday the 27th of December, Your

17 Honour.

18 JUDGE PARKER: I misunderstood. I thought a week further from

19 today was being sought. When is it that you will be in a position to

20 file, on the 20th or later?

21 MR. APOSTOLSKI: [Interpretation] Your Honour, I'm not good with

22 mathematics. I think that it we will be able to respond by the 27th of

23 December, Wednesday, so I have mixed up the dates, sorry.

24 JUDGE PARKER: Thank you. Mr. Saxon.

25 MR. SAXON: We have no objection, Your Honour.

Page 217

1 JUDGE PARKER: Well, I'm not sure how many people will be in the

2 Office of the Prosecutor to receive them on the 27th, but you may have

3 until the 27th of December to complete your work and file and -- are you

4 filing electronically?

5 MR. APOSTOLSKI: [Interpretation] Yes, Your Honour, in electronic

6 form, yes.

7 JUDGE PARKER: Thank you. If you could file and send it

8 electronically to the Prosecutor, that would be a good idea.

9 Well, if there is no other matter, we will close this

10 Status Conference. I would return the compliment of Mr. Boskoski and wish

11 all parties the compliments for Christmas and we look forward to seeing

12 more of you in the new year.

13 --- Whereupon the Status Conference adjourned at

14 3.30 p.m.