1 Wednesday, 7 May 2008

2 [Open session]

3 [Defence Closing Statements]

4 [The accused entered court]

5 --- Upon commencing at 9.01 a.m.

6 JUDGE PARKER: Good morning.

7 We continue final submissions today.

8 Ms. Residovic.

9 MS. RESIDOVIC: [Interpretation] Your Honours, the Defence is

10 presenting its closing oral arguments today. With a few prior comments,

11 I wish to inform the Court about the way in which the Defence will

12 present its closing arguments.

13 Firstly, the Defence, believing that it would be of assistance to

14 the Court, will present the evidence within the appropriate legal

15 context. It will also indicate what are the requirements of

16 international law with regards to important aspects of the doctrine of

17 responsibility of a superior officer and/or superior, and bring it into

18 correlation with the evidence presented within this case.

19 This part of the closing arguments will be presented by my

20 learned colleague Guenael Mettraux.

21 In the second part, I will speak briefly about some positions

22 presented in the closing arguments of the Prosecutor and other issues

23 raised in the closing briefs, in final briefs of the Prosecutor. The

24 Defence will not repeat the arguments already presented in the final

25 brief, Your Honours.

1 Your Honours, in order to assist the Chamber and our colleagues

2 to follow our presentation, but also to use time economically, we have

3 prepared documents that the Defence will use within the presentation and

4 also a list of evidence, exhibits, and references that will be used.

5 I will also make a few comments during the process. Defence has

6 submitted several requests for transcript verification, and I need to say

7 with gratitude that CLSS followed our requests. In numerous cases, it

8 has submitted to the Court corrigenda to the transcript, and we also

9 received some of the answers in the recent days.

10 The Defence noticed that the Prosecution has cited to uncorrected

11 transcripts, and some of the mistakes made are based on that usage of

12 uncorrected transcripts. I believe that you will have, Your Honours, all

13 corrected transcripts from this trial.

14 The issue of translation has been one of the issues frequently

15 raised within this process. Numerous issues have been resolved. The

16 meaning of some of the notions has been clarified through the witnesses

17 before this Court; however, Your Honours, you will still find different

18 translations of the same notion in various documents. It was not

19 possible to remove all such cases. We believe that it would not be of

20 such significant to have an impact on the just verdict, and now I give

21 the floor to my colleague, Guenael Mettraux.

22 Thank you.

23 MR. METTRAUX: Good morning, Your Honours. Good morning

24 Mr. President. And perhaps before we start, and with the assistance of

25 the usher, we will distribute the binders in question.

1 Your Honours, the Prosecution case against Mr. Boskoski is that

2 at the time of the alleged crimes, as a minister of the interior, he was

3 de jure and de facto the superior of the alleged perpetrators and that,

4 in that capacity and having effective control over the perpetrators, he

5 was required to investigate their actions and failed to do so.

6 In support of its contention that Mr. Boskoski was de jure and

7 de facto the superior of those alleged to have committed the crimes, the

8 Prosecution has referred to a number of decisions rendered by

9 Mr. Boskoski in 2001, and cites from a number of provision from the

10 Macedonian law.

11 The evidence that the Prosecution has put forward in support of

12 this part of its case proves only two things: First, that in 2001,

13 Mr. Boskoski was the minister of the interior of the Republic of

14 Macedonia; secondly, that all through 2001, he, in fact, exercised the

15 powers given to him by law in Macedonia. These two facts, Your Honour,

16 were never in dispute.

17 Beyond this, however, the Prosecution has failed to prove any of

18 the elements that would allow this Chamber to make a finding of superior

19 responsibility vis-a-vis Mr. Boskoski. In particular, the evidence does

20 not establish any sort of relationship of subordination between

21 Mr. Boskoski and the alleged perpetrators. Such a relationship of

22 subordination and not the fact of Mr. Boskoski's ministership was the

23 fact which the Prosecution was required to prove at trial. As a separate

24 requirement of effective control, the Prosecution asserts its success in

25 establishing that element but did not provide a basis that would allow a

1 reasonable trier of fact to agree with that assertion.

2 As a preliminary matter, Your Honour, the Defence would note,

3 once again, that the Prosecution has failed to identify a single alleged

4 perpetrators of the crimes charges and failed to establish beyond a

5 reasonable doubt that any of them was a de jure member of the MOI at the

6 time. The Defence does not hereby suggest that the Prosecution would be

7 required to identify the perpetrators by name.

8 However, and as a minimum, the Prosecution would be required to

9 establish beyond a reasonable doubt that the perpetrators were part of an

10 identifiable group of subordinates which was under the control of the

11 superior at the relevant time.

12 In this particular case, there is no basis to conclude that

13 Mr. Boskoski had any authority or control, effective or otherwise, over a

14 group of men which had been set up on an ad hoc basis with a view to

15 carry out an operation that was decided and ordered by the president of

16 the Republic of Macedonia.

17 The fact that these men were variously referred to as members of

18 the security forces or police reservists cannot make up for the fact that

19 none of them was actually and effectively shown to have been a de jure

20 member of the ministry at the time.

21 The principle question which this Chamber has to decide, and that

22 which the Prosecution has carefully avoided yesterday in its submission,

23 is not whether a volunteer could become a police reservists without all

24 the legal requirements being met, but whether those men who entered

25 Ljuboten on the 12th of August of 2001 had become members of the reserve

1 at the time. This fact has not been proved.

2 Under the Appeals Chamber's jurisprudence, Your Honours,

3 Mr. Boskoski's alleged ability to control the perpetrators would have to

4 be established at the time when the crimes are said to have been

5 committed. Accordingly, the Prosecution reference, for instance, to

6 Minister Boskoski's decisions of employment or redeployment is not

7 evidentially indicative of any degree of effective control on his part

8 over the perpetrator and is, in fact, irrelative to the charges since it

9 is temporarily unrelated to those events and demonstrate no sort of

10 authority over those concerned by the requirement of effective control;

11 namely, the perpetrators.

12 This is why, for instance, the Trial Chamber in Ntagurera, at

13 paragraph 637, rejected an argument by the Prosecution similar in kind to

14 the one now being made in this courtroom. The Chamber said this: "While

15 there is ample evidence that Bagambiki requisitioned gendarmes to provide

16 security at a number of sites, there is insufficient evidence that he

17 maintained any control over how these gendarmes carried out their mission

18 upon deployment."

19 The finding was upheld on appeal and the same reasoning would

20 lead this Trial Chamber to conclude to the irrelevance of decisions of

21 redeployment or employment which the Prosecution has put forth. Equally

22 irrelevant, Your Honour, are decisions of mobilisation and demobilisation

23 of reservists, which Mr. Boskoski adopted as minister. Those do not

24 pertain to any sort of control over the alleged perpetrators during those

25 events, nor do they demonstrate any authority to punish on the part of

1 Mr. Boskoski.

2 In Ntagurera again, the Trial Chamber, paragraph 636, rejected,

3 again, the same argument that the Prosecution is now putting forward in

4 this case. The Chamber said this: "After reviewing the relevant

5 provisions of Rwandan law, the Chamber is not convinced that Bagambiki's

6 ability to requisition gendarmes gave him de jure authority to give

7 orders to them during the execution of an operation." Again, that

8 finding wag upheld on appeal; and, again, the same reasoning and the same

9 finding would have to be made by this Chamber.

10 Let us now to turn to consider more closely, Your Honour, the

11 evidence which the Prosecution has put forward in support of its case

12 that Mr. Boskoski had superior authority and effective control over those

13 who allegedly committed crimes in the village of Ljuboten on 12th August.

14 It is the Prosecution case and the only case validly pleaded in

15 the indictment that Mr. Boskoski at the time was able to exercise

16 effective control over Mr. Tarculovski, who, in turn, would have been

17 able to exercise some sort of authority over the alleged perpetrators.

18 The Prosecution has failed to establish either aspects of that factual

19 proposition.

20 The Prosecution first relies upon the evidence given by M-052 to

21 the effect that three to five weeks before those events, someone

22 pretending to be Minister Boskoski called to say that someone would come

23 to his station and that, the next day or so, Mr. Tarculovski allegedly

24 claiming to have come on the authority of the minister arrived.

25 Your Honours, there is simply no valid basis to regard this

1 evidence as true or reliable. There is no evidence to corroborate the

2 allegation that such a phone call ever took place, and the Defence has

3 explained in its brief why M-052 is a intrinsically unreliable witness

4 for whom, as a minimum, corroboration is necessary.

5 It is telling in that regard that the telephone records of M-052

6 do not support this story, and the Prosecution was unable to prove the

7 existence of such a call based on all the phone records that they

8 reviewed. M-052 did not record this alleged incident in any Official

9 Note or any record that he kept at the time.

10 (redacted), he had claimed that such a

11 conversation had taken place on 10 or 11 August, 2001; but no doubt when

12 he was later made aware that there existed telephone records which would

13 have shown his evidence to be false, he moved that alleged phone calls to

14 the month of July, beyond those records.

15 The implied suggestion contained in the Prosecution's final brief

16 at paragraph 288, that M-053 somehow corroborated M-052's story on that

17 point, is plainly wrong. Although M-053 indicated that he had seen

18 Mr. Tarculovski on two occasions prior to the 11th of August, he made it

19 clear at trial that it was in the month of August of 2001, and the record

20 suggest that it would have been on the 10th. Never did M-053 suggest

21 having heard of a call from Minister Boskoski to M-052. Even if such a

22 call had taken place, there is no reliable evidence, Your Honour, that it

23 was, in fact, Mr. Boskoski who was on the other side of the line. M-052

24 never claimed that he had been able to ascertain or verify that fact.

25 Furthermore, there is no evidence that such a call was in any way

1 related to the events of Ljuboten, and the Prosecution never put that

2 suggestion to M-052 himself. The Defence submits that this

3 uncorroborated story should be disregarded as unreliable.

4 The Prosecution also seeks to rely upon another part of M-052's

5 evidence; namely, the suggestion that at some point prior to the action,

6 Mr. Tarculovski called Mr. Boskoski to agree to the use of a Hermeline

7 vehicle. Again, Your Honour, there is no reliable basis that would

8 permit a reasonable trier of fact to regard this evidence as true or

9 reliable.

10 The telephone records said by the Prosecution to have been used

11 by Mr. Tarculovski during that weekend do not reveal any call from that

12 phone to any of the phones used by Mr. Boskoski. Mr. Tarculovski never

13 claimed that such a call took place, whether before the second commission

14 or anywhere else. (redacted)

15 (redacted) and never recorded in any official record, note, or otherwise.

16 Even if M-052 had been truthful about what was allegedly told to

17 him by Mr. Tarculovski, there is no evidence that Mr. Tarculovski

18 actually made any contact with Mr. Boskoski on that occasion, and M-052

19 does not claim that he would have been in a position to verify this.

20 The evidence is clear, Your Honour, that it (redacted)

21 (redacted). It is equally

22 apparent from the record and consistent with M-052's pattern of false

23 stories that this story of a phone call between Mr. Tarculovski and

24 Mr. Boskoski in -- is no more than another attempt to try to place on to

25 others the responsibility for his own actions.

1 The Prosecution next relies upon a third piece of the evidence of

2 M-052, again uncorroborated. One where he claims that Zoran Krstevski

3 was present in Cair on 10 August 2001, and that at the time Mr. Krstevski

4 was or might have been an advisor to Ljube Boskoski. There is no

5 corroboration for the evidence of M-052 that Zoran Krstevski was in the

6 area at the time, and this evidence should be regarded for that reason

7 already. M-052 did not record the alleged presence of Mr. Krstevski in

8 any document, Official Note, or otherwise. (redacted)

9 (redacted)

10 No other witness claims to have seen Mr. Krstevski in the area at

11 the time, and this allegation was not put by the Prosecution to any of

12 the witnesses who might have been capable of giving evidence on that

13 point, in particular M-053. The evidence cited by the Prosecution in

14 footnote 846 of its final brief, which it claims sports the evidence of

15 M-052 on that point, does not, in fact, corroborate it to any relevant

16 extent.

17 The Defence simply invites, Your Honour, to look at tab 2 and 3

18 in your binder to ascertain that point for yourself.

19 Even if it were accepted that Zoran Krstevski had gone to the

20 area on the 10th of August, there is no evidence in what capacity he

21 would have been there, whether as a journalist or otherwise. The

22 evidence shows that, at the time, he did not work for Mr. Boskoski or for

23 the Ministry of Interior.

24 Exhibit P574, to the extent that it might suggest otherwise, has

25 been shown to be unreliable, and it is contrary to the uncontested

1 evidence that Mr. Krstevski, in fact, only left his job as a TV

2 journalist and joined the MOI in September of 2001.

3 I invite Your Honours to look at tab 4, 4A, 5, and 5A of the

4 binder.

5 Furthermore, the evidence of M-052 on that point does not provide

6 any support for the Prosecution's effective control case, as there is no

7 evidence of Mr. Krstevski having played any part in that operation or

8 being present in the area at the time of the action.

9 The Prosecution next appear to rely upon the presence of, it

10 says, both Mr. Tarculovski and Mr. Boskoski in the yard of Brace's house

11 to suggest that they met at the time. There is, in fact, no evidence

12 that the two of them met or even saw each other on the 12th of August,

13 2001; nor is there any evidence, as the Prosecution has alleged in its

14 brief, that the two of them were in Brace's yard at the same time. The

15 evidence cited by the Prosecution in support of that proposition does not

16 support such a finding.

17 We invite the Chamber to look at tab 6 and 7 of your binder.

18 There is, in fact, no evidence that Mr. Boskoski saw or

19 recognised Mr. Tarculovski on that day. There is no evidence that

20 Mr. Boskoski knew that he was there. No evidence that Mr. Boskoski had

21 any contact with Mr. Tarculovski in relation to that action. No evidence

22 that Mr. Boskoski would have had any means to control Mr. Tarculovski at

23 that time, or that he had any reason to think that he should or could.

24 Instead of supporting a case that Mr. Boskoski had any control

25 over Mr. Tarculovski at the time, the evidence plainly shows that he had

1 no means, no authority, and no reason to control him. Mr. Tarculovski

2 was sent to the area at the behest and with an order of the president of

3 the Republic, a fact that the Prosecution appears to be oblivious to.

4 The record suggests that Mr. Tarculovski and the president were in

5 regular phone contact during that weekend and that, while he was in the

6 area, Mr. Tarculovski was exercising the authority of the president and

7 executing the mandate that he had been given by him. When introducing

8 himself to others, Mr. Tarculovski would introduce himself as a member of

9 the security arrangement of the president, not as a police officer.

10 Those with whom he dealt during that weekend understood that he was there

11 as the man of the president.

12 As mentioned by Mr. Krstevski, whilst he was in the area,

13 Mr. Tarculovski was executing not any MOI-related task but implementing

14 the will and the authority of the president. There is no disputes that

15 at the time Mr. Tarculovski was an employee of the MOI. As such, he and

16 Mr. Boskoski were connected from an institutional point of view, but that

17 institutional relationship has been shown to be devoid of any value as

18 far as would be relevant to establishing a relationship of effective

19 control between the two of them.

20 The combined evidence of Mr. Krstevski, Trajkovski, and Jakovoski

21 proved beyond any doubt that the president was the sole master of the

22 security arrangement of his security arrangement and that of his family,

23 and that the MOI hierarchy exercised no control or influence over members

24 and the activities of that sector.

25 At paragraph 287 of its final brief, the Prosecution makes the

1 strange assertion that witness Zoran Trajkovski was the chief of security

2 of the MOI and, thus, a superior of Mr. Tarculovski. Clearly, that is

3 wrong and misunderstands or misinterprets the evidence of Mr. Trajkovski

4 and Keskovski about the structure of the security sector of the MOI.

5 Mr. Trajkovski was not in a relationship of superior authority vis-a-vis

6 Mr. Tarculovski, de jure or otherwise, nor was such a proposition put to

7 him by the Prosecution at trial.

8 Although the Prosecution did not allege that Mr. Boskoski would

9 have been able to exercise effective control directly over the alleged

10 perpetrators of crimes or that he could have used any other conduit than

11 Mr. Tarculovski, the Defence should point out that the evidence would in

12 any case not support such a proposition. The evidence is clear that as

13 he arrived in Ljubanci, Mr. Boskoski had had no idea about the very

14 existence of an operation; therefore, he had had no opportunity and no

15 proven ability and authority to give any order in relation to that

16 operation as might have been relevant to the charges.

17 Outside of Mr. Boskoski's alleged authority over Mr. Tarculovski,

18 the only element to which the Prosecution points to in its final brief is

19 the evidence of Mr. Jakovoski that when Mr. Boskoski entered the yard at

20 Brace's house, it was his impression that some people who were present

21 stood at attention.

22 First, it should be noted that Mr. Jakovoski, himself, made it

23 clear that what he understood by that was that those in the courtyard

24 stood still and greeted the minister. Whilst this evidence could at best

25 demonstrate some degree of respect for the minister, it would not

1 demonstrate any sort of control relevant to the doctrine of superior

2 responsibility.

3 The Tribunal has made it clear that the belief, even if held in

4 good faith, or the appearance that the accused was a person of authority,

5 does not dispense with the need to establish that he had actual authority

6 and control over the perpetrators; nor is the fact that he may have

7 influence, even substantial influence, over the perpetrator sufficient.

8 At paragraph 306 of the Celebici appeals judgement, for instance,

9 the Appeals Chamber said the following in relation to the accused Hazim

10 Delic: "The fact that the detainees regarded him as the deputy commander

11 and as a person with influence over the guards is not conclusive evidence

12 of his actual authority."

13 In other words, evidence that the accused held a position of

14 authority and that this fact was acknowledged by others is no proof of

15 effective control on his part.

16 In Kordic, for instance, the Trial Chamber noted that Mr. Kordic

17 was a politician with "tremendous influence and power," that he held an

18 important position in the leadership of Herceg-Bosna, that he played an

19 important military role, even at times issuing orders and exercising

20 authorities over HVO forces, and that, in fact, he exercised "substantial

21 influence."

22 Despite having exercised such extensive authority, the Trial

23 Chamber correctly found that Kordic could not be said to have been in

24 effective control. In Celebici, the Trial Chamber noted, among other

25 things, that Mr. Delalic's "general recognition and appreciation,"

1 paragraph 561, did not demonstrate effective control on his part. Whilst

2 in Kvocka, the Chamber concluded that Mr. Kvocka did not have effective

3 control, despite the fact that he had clear and broad authority and

4 influence within the camp, that a former inmate said in evidence that he

5 understood him to have been the commander of that camp, that guards made

6 it clear that they could not allow certain things to within that camp

7 without Mr. Kvocka's prior approval, that Mr. Kvocka, himself, addressed

8 prisoners in the course of their detention and that he told them that he

9 was in charge.

10 Furthermore, even assuming that the people who greeted Minister

11 Boskoski at Brace's house were reservists of the ministry rather than

12 self-appointed volunteers, the Prosecution has failed to establish that

13 any of those present in the courtyard at the time had taken any culpable

14 part in any of the crimes charged in the indictment or that Mr. Boskoski

15 would have been able to exercise any control over them at the time of the

16 alleged crimes.

17 Finally, it should be noted that the Prosecution has not pleaded

18 and has not established that Mr. Boskoski -- I apologise, that

19 Mr. Tarculovski had effective control over the alleged perpetrators.

20 There is no evidence that he gave any orders to any of the alleged

21 perpetrators, nor that any of them ever reported to him; nor is there any

22 evidence, Your Honour, of a proven material ability on the part of

23 Mr. Tarculovski to punish any of them for crimes that they allegedly

24 committed. In those circumstances, the chain of effective control that

25 allegedly linked Mr. Boskoski to the alleged perpetrators may be said to

1 be broken not at one, but in two places in that chain.

2 Let us turn to the other sites of alleged crime, Your Honour, the

3 police stations, the court, and the hospital.

4 It is quite remarkable, Your Honours, that the Prosecution final

5 brief does not make any submissions as regards the alleged existence of a

6 relationship of effective control between Mr. Boskoski and those said to

7 have committed crimes in those locations. The Defence, therefore,

8 invites the Trial Chamber to regard this part of the Prosecution case as

9 having been effectively abandoned.

10 In any case, the record is clear that at no point, whilst the

11 alleged crimes were ongoing, did Mr. Boskoski learn of such events. He

12 did not know of the presence of civilians in those locations, he did not

13 know of any crimes being committed in those locations, and he had no

14 proven ability to control any of the men said to have been involved in

15 those events.

16 The first unverified rumours that crimes might have been

17 committed in some of those locations reached him in September of 2001,

18 long after the time when he is said to have been able to exercise control

19 over the perpetrators. In the absence of the necessary element of

20 knowledge, and without any reason to act and no proven ability to do so,

21 he could not possibly have exercised any sort of control over the

22 perpetrators at the relevant time.

23 This part of the case should fail for that reason also.

24 In conclusion, Your Honours, the Defence submits that the

25 Prosecution has failed to establish that Mr. Boskoski was in a

1 relationship of superior/subordinate with the perpetrators and that he

2 exercised effectively control over them at the time relevant to the

3 charges, whether directly or through Mr. Tarculovski. It is our

4 submission, Your Honours, that Mr. Boskoski should be acquitted for that

5 reason alone.

6 I would move on from the issue of control, Your Honour, to that

7 of the steps which the Prosecution claims should have been taken by

8 Mr. Boskoski.

9 The Prosecution did not just go to the wrong door, Your Honours,

10 as we had told you in our opening statement, but they went to the wrong

11 house in the wrong neighbourhood. The entire Prosecution case is

12 premised upon a grave misunderstanding of the way in which the Macedonian

13 state has organised the way in which criminal investigations and

14 disciplinary proceedings are carried out and which of its organs are

15 competent in that matter. In this particular case, the Prosecution has

16 sought to attribute to Mr. Boskoski duties and responsibilities that were

17 never his own but those of the judiciary, or in some cases those of other

18 organs within the ministry.

19 The responsibility of a superior for the purpose of the doctrine

20 of superior responsibility is not made of the accumulation of duties and

21 responsibilities of his subordinates. This is also true of the duties

22 and responsibilities of the minister of the interior of Macedonia. As

23 was made clear in evidence, his duties and responsibilities are

24 expressively and restrictively provided for in the relevant laws and

25 by-laws.

1 Identifying what were the duties and obligations of a superior

2 under the relevant legal regime is critically important to determining,

3 in turn, the scope of his potential responsibility as a superior, and

4 here is why. After the First World War, Your Honour, the Commission on

5 Responsibility of the Authors of War, the commission that had been set up

6 by the five main Allied powers, noted the following as regard the

7 responsibility of civilian leaders and military commanders: "To

8 establish responsibility in such cases, it is elementary that the

9 individual sought to be punished should have knowledge of the commission

10 of the acts of a criminal nature and that he should have possessed the

11 power, as well as the authority, to prevent, to put an end to, or repress

12 them. Neither knowledge of the commission, nor ability to prevent, is

13 alone sufficient. The duty or obligation to act is essential. They must

14 exist in conjunction and a standard of liability which does not include

15 them all is to be rejected."

16 The point that the commission was making and which was later many

17 times reiterated, Your Honours, is that superior responsibility, as a

18 form of liability for a mission, may only be engaged where the superior

19 has breached a duty which was binding on him to take a particular step or

20 to adopt a particular measure. A number of Chambers of this Tribunal

21 have noted that the requirement of a pre-existing duty to take steps or

22 measures did not necessarily mean that the accused had to have the legal

23 competence to adopt those.

24 The Defence does not propose to address the correctness of that

25 view in general terms and whether such a position is, in fact, supported

1 under customary international law. The point that matters to present

2 proceedings has been decided by the Appeals Chamber and our submissions

3 would, therefore, be limited to this point: The Appeals Chamber has made

4 it clear that in a case such as the present one, where the alleged basis

5 for a duty to act is to be found in the law that regulates the role and

6 position of the accused, it is that law which is determinative of the

7 scope of the obligation which, if breached, could have the effect of

8 engaging that superior's criminal responsibility.

9 At paragraph 183 of the Halilovic appeals judgement, for

10 instance, the Appeals Chamber made it clear that the applicable domestic

11 laws and internal regulations of a particular state, in that case Bosnia

12 and Herzegovina, effectively set "the framework of a commander's material

13 ability to punish his subordinates."

14 In other words, where the basis of an accused alleged authority

15 lies in a position or role that is sanctioned and recognised by law, as

16 in the case of Mr. Boskoski's ministership, the limits of what that

17 superior would be required to do under the doctrine of superior

18 responsibility would be set by the terms of that law.

19 In the Halilovic case, the Trial and then the Appeals Chamber,

20 therefore, carefully reviewed the law relevant to Mr. Halilovic's role as

21 head of an inspection team to determine whether it included not just a

22 material ability to do certain things but duties and obligations relevant

23 to the effective prevention and pursuant of crimes. Duties and

24 obligations.

25 I draw your attention to paragraph 148 and 214 of the Halilovic

1 appeals judgement, in particular.

2 In the present case, Your Honours, the Prosecution has failed to

3 establish that by law, Mr. Boskoski bore any of the duties which he said

4 to have failed to fulfil. In other words, and even if one accepts for

5 the sake of the argument that he did not do those things which the

6 Prosecution he should have done, these were not his duties and obligation

7 as understood by the Appeals Chamber, and a failure to adopt them would

8 not be such as to entail his superior responsibility.

9 There is another problem of compatibility of the Prosecution's

10 theory with international law and domestic Macedonian law. International

11 law makes it clear that where the basis of the alleged authority of the

12 accused over the perpetrators lies in a position of authority that is

13 recognised by law and regulated by law, the relevant domestic regime

14 would be relevant not only to establishing the duties and obligations of

15 a superior but also determine the nature of his mandate and function; the

16 nature of his mandate and function, and, therefore, the outer reach of

17 his liability.

18 The findings made by the military Tribunal in the High Command

19 case in relation to the accused von Leeb is a case in point. The

20 Tribunal in this case emphasised the fact that, as commander in chief of

21 an army group, the duties imposed upon von Leeb were exclusively

22 operational, so that he had none of the executive powers that were said

23 by the Prosecution to be relevant to the charges.

24 The Tribunal went on to remark that his authority in the field of

25 executive power was more in the nature of a right to intervene than a

1 direct responsibility; page 554 and 555.

2 The Tribunal find that, in those circumstances, it was not

3 considered that criminal liability attached to him merely on the theory

4 of subordination and overall command.

5 I would indicate, in passing, that the Appeals Chamber in the

6 Halilovic case adopted that jurisprudence wholeheartedly; paragraph 212

7 to 214.

8 Therefore, where domestic law places upon different organ the

9 responsibility of leading an investigation into allegations of crimes, or

10 where the law has circumscribed the responsibility of the accused in such

11 a way that he has no or limited duties in that regard, the accused could

12 not, in principle, be held criminally responsible for failing to do so

13 himself or for limiting his involvement to what the law demands of him.

14 What may be concluded also from what has just been said, Your Honours, is

15 that a superior officer or a state official could not be held criminally

16 responsible pursuant to that doctrine in relation to measures that laid

17 by reason of their nature outside the realm of his competencies.

18 Turning again to the case of Mr. Boskoski, and taking on board

19 the requirements of international law as just outlined, it can be

20 concluded that Mr. Boskoski bore none of the duties and obligation which

21 the Prosecution charges him with failing to adopt. Effectively, the

22 Prosecution has charged Mr. Boskoski with what would be the failures of

23 others. At trial, in its final brief, the Defence emphasised the

24 importance of Macedonian law to establish the role of the minister and

25 the scope of his responsibilities. That is not because the law would

1 permit the ministers to hide from his responsibilities, but because it is

2 that law, the relevant Macedonian law, that enables the minister to carry

3 out his function, and it is that law that sets out the limits of his

4 duties as minister and is relevant to your findings.

5 Functionally, the minister of interior is a political appointee,

6 a manager who heads the ministry. He has no operative competencies but

7 for a limited number of them that have been expressly provided for in the

8 law. As minister of the interior, Mr. Boskoski had no competencies and

9 no duties as regard the investigative activities of the competent organs

10 of the ministry, and his disciplinary competency is narrowly described

11 and his role provided for in the laws and by-laws. The minister does not

12 control, nor is he in charge, of the professional aspects of the work of

13 the ministry.

14 This responsibility lies with the competent operatives at various

15 levels of the ministry, and, ultimately, with the director of the public

16 safety bureau who heads the professional part of the ministry.

17 The minister of interior is not a replacement player, not a

18 substitute for anyone else in the structure of the ministry. He is it

19 not a criminal investigator, he is not the head of a police station, he

20 is not the director of the public safety bureau. And when the

21 Prosecution tries to transfer on to the Ministry of Interior what, in

22 practice, are the obligations and responsibilities of the judiciary over

23 the criminal investigation, Your Honours would be fully entitled to draw

24 inferences from the fact that the Prosecution in this case has called

25 none of the members of the judiciary who had been involved with the

1 Ljuboten investigation. And when asked to draw certain inferences about

2 the minister's role and powers in the disciplinary context, the Chamber

3 would be equally entitled to draw the necessary inferences from the fact

4 that the Prosecution did not call anyone from the disciplinary commission

5 to give evidence.

6 There is another aspect that does not fit within international

7 law, and that is the suggestion that the minister was required to

8 personally involve himself into this matter. International law requires

9 a superior to make a good faith attempt to contribute to the

10 investigative effort. The form that this may take in practice will vary

11 from one case to the other, depending on the circumstances, the legal

12 order in question, and the position of the accused.

13 Focussing for a moment on the requirements of international law,

14 it can be underlined that international law does not require that the

15 superior should carry out any of the investigative work himself or that

16 he should involve himself permanently into the matter. A superior could

17 fulfil his duty to punish by ensuring that the competent investigative

18 bodies are seized of the matter, as was done in the present case.

19 Contrary to the Prosecution allegation, international law does not

20 support the suggestion that the superior would be required to appoint

21 anyone to that task or to set up a new investigative structure if one is

22 already in place.

23 In Ford versus Garcia, for instance, a case from an American US

24 appeal Court that relies heavily on the jurisprudence of this Tribunal,

25 the court said the following: "A commander may be relieved of the duty

1 to investigate or to punish wrongdoers if a higher military or civilian

2 authority establishes a mechanism to identify and punish the wrongdoers.

3 In such a situation, the commander must simply do nothing to impede nor

4 frustrate the investigation."

5 For Your Honours' assistance, we have put a list of authorities

6 at the end of the binder.

7 In this particular case, Your Honours, Mr. Boskoski was,

8 therefore, fully entitled to rely upon the structures and procedures, in

9 particular, the judicial organs that are provided for by law and that are

10 competent to carry out criminal investigations. As was made clear in the

11 Defence final trial brief, those judicial organs were properly seized of

12 the matter as early as 12 August 2001 and were competent to carry out the

13 investigation. And where such a course has been fouled, and unless he is

14 alerted to problems that require his involvement, a superior is entitled

15 to under international law to assume that the matter is being properly

16 investigated by the competent organs.

17 Again, Your Honour, I will cite from that same case, Ford versus

18 Garcia. It says this: "Unless the commander has received information

19 suggesting that the investigative or preventive structure is not working

20 properly, he would be entitled to assume that the mechanism put in place

21 is capable of preventing or punishing those crimes."

22 There is one more point that I would wish to make about what a

23 superior is expected to do according to international law as regard the

24 prevention and pursuant of crimes. One way in which international law

25 deals with its own lack of certainty, and perhaps lack of foreseeability,

1 is to leave a great deal of discretion to those who are supposed to

2 implement it or to comply with it. That is true of the law of superior

3 responsibility.

4 As far as superiors are concerned, Your Honour, international

5 criminal law does not provide for a list of measures that a superior

6 would be required to adopt in a particular situation where he learned of

7 a crime. Instead, international law requires that a superior should take

8 measures that are necessary and reasonable in the circumstances.

9 The element of discretionary power that is imbedded into the

10 concept of necessary and reasonable measures is that of the superior not

11 that of the court. In other words, it is not for the court to decide

12 whether it would have adopted the same measures in the circumstances.

13 The court does not express agreement or disagreements with the means

14 adopted; but, rather, fulfil its role of reviewing the legality of the

15 decision of the superior.

16 The Court does not determine whether the measure which the

17 superior has adopted were reasonable in the circumstances; but whether,

18 in the circumstances, they could reasonably have appeared to be so to the

19 superior.

20 An interesting illustration, Your Honour, of that proposition or

21 that principle may be found in the decision of the Supreme Court of

22 Israel which is concerned not directly with the doctrine of superior

23 responsibility but with a court's review pursuant to the

24 Geneva Conventions of Israel's decision to assign to residence Arabs from

25 the West Bank to the Gaza Strip.

1 This is what Supreme Court said on this point: "In exercising

2 judicial review, we do not make ourselves into security experts. We do

3 not replace the military commander's security considerations with our

4 own. We take no position on the way security issues are handled. Our

5 job is to maintain boundaries and to guarantee the existence of

6 conditions that restrict the military's commander's discretion because of

7 the important security aspects in which the commander's decision is

8 grounded.

9 "We do not, however, replace the commander's discretion with our

10 own. We insist upon the legality of the military commander's exercise of

11 discretion and that it falls into the range of reasonableness determined

12 by the relevant legal norms applicable to the issue."

13 It is not, therefore, for the Chamber in hindsight to replace the

14 assessment that a superior might have made of the situation with its own,

15 but to determine whether the course which he pursued in the circumstances

16 could appear to be a reasonable one to him. In the present case, it is

17 clear that the course chosen by Mr. Boskoski should be regarded as

18 adequate in the circumstances, and it certainly was regarded as such by

19 him.

20 A superior is not only entitled to rely upon others to

21 investigate, but he is also entitled to assume that they are acting

22 diligently and competently, and can, therefore, rely upon the information

23 which they provide to him.

24 He is also entitled, Your Honour, to prefer this information to

25 rumours coming from third parties, particularly, where, as in the present

1 case, those rumours are, for the most part, unverified and unreliable.

2 In its final report on the Shatilla and Sabra massacre, for

3 instance, an Israeli Commission of Judicial Inquiry noted, inter alia,

4 that it ought not to be critical of the Israeli prime minister because

5 did he not on his own initiative take any interest in the detail of the

6 operation and did not investigate the reliability of reports of crimes

7 which he had received, despite the fact of very public reports of

8 violence in that refugee camp.

9 The commission composed of members of the Israeli judiciary said

10 this: "The tasks of the prime minister are many and diversion, and he

11 was entitled to rely on the optimistic and calming report of the defence

12 minister that the entire operation was proceeding without any hitches in

13 the most satisfactory manner."

14 In the present case, Mr. Boskoski was, therefore, fully entitled

15 to rely upon the existing personnel structures and procedures as were in

16 place at the time in Macedonian, both within and outside the ministry;

17 and he was also entitled to rely upon the information which he received

18 from the organs in the ministry.

19 His reaction in the circumstances was prompt as he met, the day

20 after the event, with the head of the OSCE. One that same day, he set up

21 a commission of inquiry and appointing the three most senior officers of

22 the ministry to head this commission.

23 His effort was in good faith and consistent all through the

24 relevant time period and beyond. At all stages, he sought to keep

25 himself informed and made various suggestions to the competent organs

1 within the ministry. It has been established beyond a reasonable doubt,

2 Your Honours, at trial that Mr. Boskoski personally took more than 35

3 different steps to try to elucidate those events and to support the

4 investigative effort. Most of those measures went far beyond his strict

5 legal documents and additional offers of help which he had made were even

6 rejected.

7 It is quite remarkable that the Prosecution would not address any

8 of those and see how they fit, individually or as a whole, in the theory

9 of a cover-up organised or supported by Mr. Boskoski. His actions were

10 supportive of the efforts of the competent state organs, first among

11 those the state and local Prosecutors to whom Mr. Boskoski and the

12 ministry provided all requested assistance, information, and support.

13 His effort was adequate in the circumstances and his conduct was

14 not that of a man who condoned or acquiesced to the crimes, but those of

15 a man who used his position and authority to advance the investigative

16 effort. His actions were also critical to the entire investigative

17 process. It was Mr. Boskoski who put that process in motion when he sets

18 up a commission of inquiry into those events, later providing the

19 information it had collected to the relevant authorities, including the

20 Office of the Prosecutor of this Tribunal, and supporting the initiative

21 of Director Mitevski to recommend an exhumation and autopsy to the

22 judicial authorities.

23 His many repeated undertakings to assist the investigative

24 process were all powerful indications of his and the ministry's readiness

25 to assist the judicial process in this matter. The vocal public support

1 of Mr. Boskoski for the investigation was also an important incentive for

2 the competent organs of the ministry to act diligently.

3 Mr. Boskoski also briefed the government, not once but twice

4 about these events, and he fully embraced and supported the idea of

5 international involvement in this case. The Prosecution allegation that

6 Mr. Boskoski took part in a cover-up is nothing but thin air, naked

7 advocacy that is in denial of the evidence, and oblivious to the

8 requirements of the law. No one piece of the evidence could be read as

9 suggesting any interference on the part of Mr. Boskoski with the

10 investigation or any deliberate and knowing criminal abandonment of his

11 duties. That simply is not the evidence.

12 According, even if Mr. Boskoski was recorded as a superior of the

13 perpetrators at the relevant time, the Chamber would have to find that he

14 fulfilled all those duties as would be relevant to his obligation insofar

15 as pertinent to the doctrine of superior responsibility. The Prosecution

16 case would fail for that reason also.

17 Should the Chamber decide or need to push its finding up to that

18 point, or should it find that Mr. Boskoski was derelict in fulfilling his

19 duties, it would next have to determine if any fault as could be

20 attributed to our client would be such to trigger his alleged superior

21 responsibility.

22 The relevant standard in international law is as follows: "The

23 dereliction of duty would have to be such as to amount to a gross

24 violation of his duties. In effect, the breach must be such as to amount

25 to acquiescence or tolerations of the crimes on his part."

1 Again, I refer to the authority that we listed in our binder.

2 The Prosecution has not established that Mr. Boskoski either

3 acquiesced or tolerated the crimes charged in this case and the evidence

4 demonstrates the very opposite. Mere negligence on the part of a

5 superior would not be sufficient to attract superior responsibility. The

6 case of the Prosecution would fail at that part, too.

7 Your Honours, Mr. President, we submit that the evidence that is

8 now on the record would give the Chamber no valid basis on which to enter

9 a finding of guilt. What the evidence tells you is that Mr. Boskoski and

10 the competent organs of the ministry did what they were required to do,

11 as well as what they could, under the circumstances to elucidate these

12 events and to assist the competent judicial organs who were in charge of

13 that process.

14 The case as now presented to you by the Prosecution is built on

15 assumptions, not evidence, and pays no regards to how things really are.

16 The Prosecution case assumed laws and provisions that do not exist. It

17 presupposes duties and obligation that were never borne by the minister,

18 imagine facts and events that never took place, and supposes evidence

19 that simply does not exist.

20 It is just this lack of connection to a concern with the truth,

21 this indifference to how things really work, legally and factually; and

22 the Prosecution's inability to carry its onus to relevant degree of moral

23 certainty, that means that the case must fail.

24 Your Honours, Mr. President, I'm grateful for your patience and

25 for your attention, and I will now give the floor to Ms. Residovic.

1 Thank you.

2 JUDGE PARKER: Thank you, Mr. Mettraux.

3 MS. RESIDOVIC: [Interpretation] Mr. President, Your Honours, my

4 colleague Mr. Mettraux, in his arguments, drew attention to the numerous

5 deficiencies in the Prosecutor's final brief. We have observed erroneous

6 references to evidence, erroneous quotations, incomplete references to

7 evidence, and miss interpretation of the evidence. The Defence does not

8 consider that these errors were intentional, but we wish to draw

9 attention to their existence because they may lead to erroneous

10 conclusions about the facts of this case.

11 Your Honours, we are convinced that in reaching your decision,

12 you will rely on the actual evidence in this case, on the witness

13 testimonies in their entirety, and that the errors that have been made

14 will not influence your deliberations.

15 The Defence wishes to point out that the Prosecutor, in his final

16 arguments, both written an oral, failed to respond to important issues

17 raised in these proceedings, which are important to establish the

18 criminal responsibility of the minister. According to the Defence, the

19 Prosecutor failed to respond to issues concerning the position and powers

20 of the minister, his position in the structure and hierarchy of power.

21 He failed to address the role of the minister in criminal

22 proceedings, to evaluate the functioning of disciplinary proceedings, to

23 state his position on the independence of the organs within the ministry,

24 the public security bureau, and administration for security and

25 counter-intelligence, to state his position on effective control of the

1 police stations. This has already been referred to by my colleague

2 Mr. Mettraux.

3 He has not referred to or identified a single the law prescribing

4 or listings the duties and responsibilities of the minister which the

5 Prosecutor claims the minister failed to carry out. He has not referred

6 to a single precedent which might indicate that a superior in the

7 position at the level of the minister would have the duties which the

8 Prosecutor claims that Minister Boskoski failed to carry out. He did not

9 call an expert for the legal system of Macedonia who would explain the

10 role of the minister and the structure of the government in the Republic

11 of Macedonia.

12 He did not offer a single argument to show that Minister Boskoski

13 knew for -- knew of a single problem in ongoing investigation activities

14 before the judicial and other organs. He did not clarify why the

15 investigative activities concerning the events in Ljuboten would be

16 carried out at the level of the minister of the interior of the Republic

17 of Macedonia; that is, at the state level; although, both the law and the

18 practice show that it was the organs of the department of the interior

19 and sectors of the interior that were in charge of that in accordance

20 with their territorial and subject matter jurisdiction.

21 The Prosecutor does not explain how it would be possible to

22 initiate disciplinary proceedings when not a single perpetrator was not

23 known or identified.

24 THE INTERPRETER: Co-counsel kindly slow down for the

25 interpreters.

1 MS. RESIDOVIC: [Interpretation] The Prosecutor does not even

2 attempt to clarify the role of the president in connection with the

3 operation, and overlooks the facts which indicate that it was the

4 president who ordered this operation.

5 Your Honours, in our introductory remarks, we have drawn

6 attention to the fact that the Prosecutor did not call witnesses who

7 could have provided relevant evidence, or he failed to call them, for

8 example, the president of the commission formed of the 13th of August;

9 Goran Mitevski, Zivko Petrovski, the under-secretary for the crime

10 investigation, police, the members of the disciplinary commission, and so

11 on; or, he did not put the relevant facts or evidence to the witnesses he

12 did call.

13 Of course, the burden of proof, in any criminal proceedings,

14 including these, is on the Prosecutor. The Defence does not wish to say

15 that it has right to interfere in the manner in which the Prosecutor

16 presented his evidence. However, the Defence is certain that the

17 Prosecutor did not call these witnesses because he was aware that these

18 witnesses could not corroborate his case.

19 Your Honours, in his final brief, the Prosecutor abides by

20 certain statements for the simple reason that he does not understand the

21 manner in which the Macedonian state is organised; what powers and

22 competence are given to the president and the ministers, including the

23 minister of the interior; how criminal investigations are carried out;

24 who the authorised organs and persons are to conduct disciplinary

25 proceedings; as well as other facts which my colleague Mr. Mettraux has

1 drawn attention to in detail.

2 In part 3 of his final -- of their final brief, the Defence

3 analyses in detail the nature of the role of the minister, the legal

4 basis and sources of competency of the minister which stem from three

5 basis: First, the law; secondly, the decisions of the government; and,

6 thirdly, decisions by the president.

7 In paragraphs 333 and 334 of his final brief, the Prosecutor

8 claims that the minister was not bound by strict application of the law,

9 that there was flexibility in interpreting the law, that he failed to

10 compare his role with the role of the president. The president was said

11 to have a wide scope of discretion and flexibility in interpreting the

12 law and applying his powers. The Defence wishes to point out that this

13 is simply not true, and that this allegation by the Prosecutor is not

14 founded in the evidence.

15 The constitution of the Republic of Macedonia, Exhibit P91, draws

16 a clear distinction between the positions of the president and a

17 minister. Article 79 to 86 of the constitution, which are found in

18 tab 10 of the binder, establishes the original competencies of the

19 president which are not limited.

20 However, in Article 95 of the constitution, which is found in

21 tab 11 of the binder, it is established that the state administration

22 consists of the ministries and other organs of administration. And in

23 paragraph 3, it immediately adds that the work of the administration is

24 governed by a law passed by two thirds majority in the parliament. The

25 law on the organisation and work of the organs of state administration,

1 Exhibit P92, tab 12 of the binder, and in Article 49, paragraph 1, all

2 this lists the competencies of the minister in supervising the work of

3 the ministry and his authorities vis-a-vis employees. But it is

4 immediately stated that the minister has these competencies only if these

5 are not otherwise prescribed by the law.

6 In Article 55 of the same law, which has been quoted the more

7 than once here by numerous witnesses, the minister has powers to -- to

8 issue numerous official documents if he is authorised to do so by the

9 law. The law on the government and the rules of procedure, these are

10 Exhibit P551 and P552, and these are in tab 13 and 14 of the binder,

11 prescribes and establishes the responsibility of the minister in

12 implementing the decisions of government or cabinet.

13 The labour law, Exhibit P553, and parts of it are to be found in

14 tab 15 of the binder, establishes the powers and authorities of

15 employers, vis-a-vis employees. The collective agreement establishes

16 that the ministry is the employee and is respected by the minister.

17 Therefore, contrary to the Prosecutor's theory of a broad and

18 flexible application of the law, concerning the powers and authorities of

19 the minister, both the constitution and the law draw a clear distinction

20 between the original authorities of the president which are not limited

21 by the law and the competencies of the minister which are prescribed by

22 the law.

23 Numerous exhibits and pieces of evidence in the proceedings

24 clearly indicate that this was not only the de jure but also de facto

25 position of the ministry, and I refer to the testimony of Vesna Dorevska.

1 In parts 2, 4, and 9 of its final brief, the Defence has analysed

2 in detail the evidence of the role of the Ministry of Interior and the

3 minister in criminal investigations. We wish to draw attention to the

4 decision of the Appeals Chamber in the Hadzihasanovic case. In

5 paragraph 142 the Appeals Chamber establishes that both the Trial Chamber

6 and the parties in the proceedings, both sides in the proceedings, linked

7 their arguments and submissions to the nature of the measures taken.

8 The Appeals Chamber drew attention to the fact that the relevant

9 issue is whether a reasonable trier of fact can conclude that

10 Hadzihasanovic took measures to punish the perpetrators which were

11 necessary and reasonable in the circumstances of the case, rather than

12 whether these measures were disciplinary or criminal in nature.

13 In the Hadzihasanovic case, the Appeals Chamber considered the

14 report of the 20th of August, 1993, and found that this report indicated

15 that there were grounds to suspect seriously whether the 307th Brigade

16 submitted to the public prosecutor in Bugonja a criminal report on the

17 event; and although only murder is mentioned in that report, the Appeals

18 Chamber found that the Trial Chamber erred in not taking into

19 consideration that the report of the 20th of August gave rise to

20 reasonable doubt, reasonable grounds to suspect that the 3rd Corps

21 initiated -- whether the 3rd Corps initiated a report against the

22 perpetrators of murder and cruel treatment. Paragraph 146 of the Appeals

23 Chamber.

24 THE INTERPRETER: Could counsel please slow down.

25 MS. RESIDOVIC: [Interpretation] The Appeals Chamber further, in

1 paragraph 148, found in view of the evidence that no reasonable trier of

2 fact could establish beyond a reasonable doubt that the 3rd Corps failed

3 to initiate criminal proceedings. Further, the Appeals Chamber found

4 that no reasonable trier of fact could conclude, based on the evidence,

5 that the measures taken to punish the perpetrators were inadequate in the

6 circumstances of the case.

7 Your Honours, if we go back to the evidence in this case, we

8 shall establish that the Prosecutor, as we already stated in our

9 introductory remarks, was knocking on the wrong door in ascribing to the

10 minister duties he did not have and the responsibilities of other organs

11 in conducting the investigation.

12 Apart from what has already been stated in parts 2, 4, and 9 of

13 the final Defence brief, and in connection with the exercise of the

14 duties of the minister and ministry in taking measures, we wish to point

15 out the following, In the light of the said decision of the Appeals

16 Chamber. In carrying out its responsibility, the ministry acted with

17 urgency. Let us draw your attention to the fact that the evidence

18 indicates that as soon as the 12th of August the duty operative centre

19 informed the investigating judge and the investigating prosecutor of the

20 fact that in the village of Ljuboten there were people who had been

21 killed. That's Exhibit 1D6, tab 23.9 [as interpreted] of the binder;

22 Exhibit 1D71; the testimony of witness M-037; of Petre Stojanovski; of

23 Zlatko Jakovksi and other evidence.

24 On the 14th of August, after new information that in the village

25 there was still bodies of those who had been killed, again, the

1 investigating judge and the prosecutor were informed, with a view to

2 their conducting an on-site investigation. For example, Exhibit 1D6 in

3 tab 23F of your binder as well as the evidence already cited.

4 On two occasions, on the same day, in accordance with the orders

5 issued by the investigating judge, the sector of interior affairs formed

6 a team of forensic technicians to assist the court in the course of the

7 on-site investigation, and this fact is supported by numerous exhibits

8 and pieces of evidence. Let me mention the testimony of Petre

9 Stojanovski.

10 As soon as this information was obtained, the

11 prosecutors and the investigating judge were immediately informed of

12 persons who had been brought in, and pursuant to a decision issued by the

13 investigating judge they were detained in the police station. For

14 example, Exhibit P54.046, and in the binder, it is found in tab 23I.

15 Also, as soon as information was received of the death of Atulla

16 Qaili on the 14th of August, the competent basic public prosecutor was

17 informed of the fact. This follows from Exhibit P46.16, in tab 23 of the

18 binder; Exhibit P261, in tab 23A of the binder; Exhibit P54.030, in

19 tab 23E of the binder; and Exhibit P46.48. All these exhibits show that

20 the competent judicial organs were informed by the ministry of the death

21 of Atulla Qaili.

22 The investigating organs and the investigating judge, as well as

23 the prosecutor, were immediately informed of the injured persons who were

24 in the town hospital. Let me draw attention to Exhibit P262, in tab 23B.

25 That meeting, where all these persons who had been brought in were

1 discussed, when the judicial organs took responsibility for them, the

2 meeting was attended by the acting basic public prosecutor, Lazar

3 Kantrandziski, the deputy public prosecutor, Jovo Serafimovski, and the

4 decision was issued by Judge Beqir Shahini.

5 In connection with this information concerning the injured

6 persons who were brought in, I wish to draw attention to Exhibit P54.052,

7 in tab 23G of the binder; Exhibit P51.20, in tab 23H of the binder;

8 Exhibit P54.046, in tab 23I of the binder; and then in the transcript,

9 the testimony of Isni Ali, transcript page 3471-3472, in tab 24 of the

10 binder; and Exhibit P54.017, in tab 24A of the binder; and other exhibits

11 which clearly indicate that the Ministry of Interior, as soon as it

12 learned of the facts, informed the competent judicial organs. They

13 informed them of all the relevant facts that they found about the events

14 in Ljuboten and elsewhere.

15 Your Honours, the evidence shows that the organs of the ministry

16 immediately, whether orally or in writing, informed the competent

17 judicial organs of all the facts which might be relevant for grounds to

18 suspect that a crime had been committed and that this was a grounded

19 suspicion. Had the Ministry of Interior and the minister taken only

20 these measures and no others, they would have acted in accordance with

21 their legal authorities and fulfilled their duties, and all duties

22 concerning further criminal proceedings would have passed on to the

23 judicial organs.

24 The evidence concerning this is not contradictory, and such

25 evidence has been presented before this Court. First of all, the Law on

1 Criminal Procedure, P88, which indicates clearly that -- and also the

2 testimonies of all the witnesses heard concerning this issue, Vilma

3 Ruskovska and Petre Stojanovski, they all show that once the competent

4 judicial organ has been informed, the duties of the police cease and all

5 responsibility passes to the prosecutor and the judge. In further

6 proceedings, the police is duty-bound to act on orders issued by the

7 prosecutor and the judge.

8 In addition to the measures in part 9 -- in addition to all of

9 these measures, the Defence, in part 9 of its final brief, has listed

10 other numerous measures which the ministry and the minister undertook

11 either on their own initiative or at the request of the judicial organs

12 in order to throw light on all the facts concerning the events in

13 Ljuboten on the 12th and the 14th, and around Ljuboten.

14 Your Honour, we will mention only some of these additional

15 measures. On the 13th of August, the minister immediately formed a

16 commission which comprised the most responsible officials in the

17 ministry, whose task was to investigate these events. That's Exhibit

18 P73. The information that the ministry obtained was provided to the

19 coordinating body of the government, which includes ministers who were

20 both Macedonians and Albanians, and then the government or cabinet of the

21 Republic of Macedonia was immediately informed, as stated by my colleague

22 Mr. Mettraux. The conclusions of the government were immediately

23 implemented, as can be seen in Exhibits 1D134 and 1D137.

24 The assistance of international organisations and organs

25 was immediately sought to assist the ministry in investigating the case.

1 I wish to draw attention to the testimony of General Galevski and other

2 evidence is listed in the final brief.

3 I refer to the same when I say that the ministry immediately

4 sought assistance in their investigations from the deputy prime minister,

5 who was an Albanian by ethnicity.

6 In the report of the commission formed by Minister Boskoski,

7 attention was drawn to the need for an exhumation in order to learn the

8 causes of deaths and other circumstances relevant for the checking of the

9 suspicion. That's Exhibit P378.

10 A written initiative was submitted to the judicial organs for the

11 undertaking of investigating activities. That is exhumation and a

12 post-mortem. Exhibit 1D33 and P102. The OTP of the international

13 Tribunal was informed of the information. The organs of the OVR and SVR

14 continued searching for facts of significance for illuminating the case

15 as can be seen from the testimony of Blagoje Toskovski, Petre

16 Stojanovski, Igno Stojkov, and others.

17 In the Hadzihasanovic case, the Appeals Chamber drew attention,

18 in paragraph 154 of the judgement, that the superior does not have to

19 conduct the investigation personally, but can delegate this to another

20 competent organ; and referred to the trial and appeal judgements or

21 decisions in the Blaskic case. In paragraph 547 -- 546 to 547 of their

22 final brief, the Defence has fully stated this standpoint.

23 In this specific case, Minister Boskoski never creased to be

24 interested in the events and urging the bodies to completely and

25 truthfully clarify the case and then take responsibility measures if

1 circumstances for this exist. This is indicated by the testimony of Igno

2 Stojkov and Sofija Galeva-Petrovski.

3 JUDGE PARKER: Ms. Residovic, is this a convenient time.

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

5 Honour.

6 JUDGE PARKER: I can see that you need a break, but certainly the

7 interpreters.

8 We will continue at 11.00.

9 --- Recess taken at 10.28 a.m.

10 --- On resuming at 11.00 a.m.

11 JUDGE PARKER: Ms. Residovic.

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

13 Honours.

14 Your Honours, the bodies of the Ministry of Interior continued

15 pursuing additional information through the competent bodies. I'm

16 referencing in this respect to the testimonies of Petre Stojanovski,

17 Sofija Galeva-Petrovska, Igno Stojanovski; and in indication to their own

18 activities, they also spoke about activities of others within the

19 Ministry of Interior, Katica Jovanovska, and other individuals and

20 bodies. Established were task forces and commissions with the same task.

21 The communication with the public prosecutor went on, and all

22 information were forward to them. I am indicating here, Your Honours,

23 the testimony of General Risto Galevski; transcript 3626, then 3661, and

24 the statements of Igno Stojkov and Sofija Galeva-Petrovska.

25 The ministry promptly offered complete cooperation and reacted to

1 all requests sent by the international Tribunal in terms of forwarding

2 the evidence that the ministry had available.

3 Despite the undisputable facts in the case, the Prosecutor

4 remains that the activity of the minister and the ministry was

5 non-transparent. It is stated, in paragraph 362 of the Prosecutor's

6 final brief, where the Prosecutor assumes the position that this was the

7 antithesis of transparency.

8 Regarding this issue as well, the Defence provided detailed

9 arguments in its final brief, in paragraph 644 to 648; and at this

10 moment, we feel it is important to stress the following: First, the

11 assertions about the Prosecutor about the lack of transparence on the

12 lack of procedure are completely unfounded. The evidence led before this

13 honourable Court show that the Minister Boskoski, already on the 14th of

14 August, 2001, in a public statement expressed the interest that all facts

15 are investigated and he announced that an exhumation would be needed.

16 In the report of the committee established by Minister Boskoski,

17 or rather, about that report, all relative bodies were informed, as I

18 indicated before. He invited all interested international organisations

19 to participate in the further course of the investigation, and the report

20 was submitted to the office of the ICTY in Skopje.

21 He publicly and personally expressed his faith in the work of the

22 justice system bodies, and the cases were within their remit of

23 competence; all cases and also the Ljuboten case.

24 The Prosecutor remains with the position that it was a sham

25 investigation, and asserts this without any foundation for it in the

1 evidence on record. As opposed to this unfounded assertion of the

2 Prosecutor, evidence shows that the committee worked abiding by the law,

3 relying on the bodies of the ministry competent to act in the pre-trial

4 and trial procedure, and in cooperation with other bodies competent to

5 act. I'm referencing here the aforementioned testimony of General Risto

6 Galevski, who stressed that before compiling the report of the committee,

7 they had meetings with the public prosecutor and that such meetings

8 continued after the report was filed.

9 The evidence also shows that the committee -- or commission

10 proceeded urgently and adequately to the circumstances in which it

11 operated. In relation to the conclusion of the Prosecutor in

12 paragraph 343 of his final brief and in relation to the findings of the

13 committee chaired by Mitevski, Exhibit P378, that it was that an

14 occurrence of a presence of a negligible and tolerable degree of

15 individual deviation from the boundaries of prescribed competencies was

16 recorded.

17 In relation to this, we note the Prosecutor failed in the course

18 of the procedure to establish what this notion means: "Negligible and

19 tolerable degree of individual deviation." In the extent to which this

20 notion would be important for the state of mind of Mr. Boskoski, this

21 question should have been put to the witnesses that were able to explain

22 what that notion means, especially General Galevski who was a committee

23 member; but the Prosecutor just read out this part of the information

24 without requesting clarification to this.

25 The Prosecutor also failed to prove that the actions detailed in

1 the document would, in itself, constitute a crime or breach of discipline

2 in relation to which a criminal or disciplinary procedure would be

3 carried out.

4 The Prosecutor also failed to prove that the described actions by

5 their nature would be sufficient to testify about the state of mind of

6 Minister Boskoski. The Appeals Chamber, in the Krnojelac case, clearly

7 established that the information that would pertain in general to crimes

8 are insufficient. It is necessary to prove that the accused was aware,

9 had knowledge of the actions that they are charged with.

10 In this case, the sentence mentioned does not indicate murder,

11 cruel treatment, or wanton destruction, so acts that the accused Ljube

12 Boskoski is charged with. Failing to ask Galevski about it and

13 refraining from questioning Zivko Petrovski and failing to invite Goran

14 Mitevski, the Prosecutor is not able to request from the Court to draw

15 conclusions on the basis of that sentence -- the conclusion that the

16 Prosecutor wishes to draw.

17 In any case, the witness Sofija Galeva explained before this

18 Court that there were only rumours about excessive use of force, and it

19 was impossible to verify those.

20 In paragraph 385 of the final brief, the Prosecutor asserts that

21 Boskoski failed to submit the commission's report to the unit for

22 professional standards or the disciplinary committee. In relation to

23 this, we mention, firstly, from the Exhibit 1D372, and that is response

24 of the Macedonian government to the committee for prevention of torture.

25 In page 1D00-9863, it is clearly visible that the unit for professional

1 standards in 2002 and 2003 was still in the process of establishment, so

2 it was not possible to submit the report to it.

3 The Prosecutor failed to prove whether the report was filed with

4 the disciplinary committee of the sector for internal affairs, Skopje,

5 because the records maintained on disciplinary procedures are kept on the

6 basis of data of known perpetrators against whom a disciplinary procedure

7 could be carried out. To verify this fact, the Prosecutor failed to call

8 any of the members of the disciplinary committee as witnesses.

9 In paragraph 275 of the his final brief, the Prosecutor alleges

10 the suspicion of duty of M-056 as proof of the disciplinary competencies

11 of the minister. In relation to this, the Defence stresses, firstly,

12 suspicion from duty is not a measure within the disciplinary procedure

13 and is not a prescribed sanction. It is not prescribed in the collective

14 agreement, and the Defence argument is in detail in chapter 5 of the

15 Defence final brief.

16 Secondly, a disciplinary procedure could be instituted only

17 against a known violator of working duties. So, even if somebody thought

18 that the suspicion from duty was related to the disciplinary procedure,

19 it is clear, then, that M-056 was a known perpetrator. While in

20 Ljuboten, until this very date, it was not established that there were

21 persons who have committed crimes or violated working discipline.

22 And, finally, the Prosecutor failed to accuse Boskoski that he

23 the duty and needed to suspend from duty persons related to Ljuboten

24 events.

25 Boskoski, on the 18th of June, 2001, established a commission to

1 investigate the allegations about any overstepping of powers on the part

2 of police against the Albanian population; Exhibit 1D113. That

3 commission was chaired by General Zoran Jovanovski.

4 In paragraph 351, the Prosecutor devaluates this effort as well,

5 asserting that just a few days later, Boskoski furiously reacted to the

6 request that those abuses seize. These allegations are not correct since

7 the cited conversation, as indicated in P402, took place several days

8 after 18th of July and not 18th of June, as the Prosecutor asserts, and

9 the furry of Boskoski was related to the violation of cease-fire.

10 Facts, evidence, and arguments presented in the final brief, and

11 in light of the previously quoted verdict of the Appeals Chamber in the

12 Hadzihasanovic case, the Defence believes that no reasonable trier of

13 fact could conclude that Minister Boskoski failed to undertake necessary

14 and reasonable measures to investigate and sanction perpetrators in the

15 circumstances in which the minister acted.

16 In the remaining part of my presentation, I will highlight just

17 several other examples of erroneous and unfounded allegations in the

18 brief of the Prosecutor. There is no proof for the assertion of the

19 Prosecutor, in paragraph 21, that would corroborate that an order was

20 issued (redacted) to fortify the check-points, and there is no evidence

21 indicated that this fortification came about. The witness Petre

22 Stojanovski spoke about it in transcript 9148-9149, 9155, and other page

23 numbers that I indicated in our final brief.

24 The evidence that the Prosecutor indicated in his final brief as

25 allegedly corroborating this position are actually not corroborating this

1 position. Further on, there is no evidence that Ljube Boskoski knew

2 about that order, even if such order existed.

3 Finally, (redacted)

4 (redacted) is in contradiction to the assertion of the Prosecutor that the

5 minister had competencies in relation to the check-points.

6 In paragraphs 13, 233, and 249 of the final brief of the

7 Prosecutor, the Prosecutor completely and erroneously alleges that the

8 violation against civilians and civilian facilities was the established

9 practice, citing to the statement of Petre Stojanovski, in order to

10 demonstrate mens rea of the minister about the actions of the police.

11 In contradiction to this assertion, the witness Stojanovski

12 testifies to the opposite exactly, speaking about the spontaneous

13 reaction of the common folk which the police opposed using all available

14 means in order to save the civilian population. I'm indicating here

15 transcript page 9118, 9119, then 9295 to 9260. This assertion of witness

16 Petrovski is also corroborated by witness Risto Galevski, transcript page

17 3744, 3745; and Kristo Zdravkovski.

18 In the entirety of th is evidence, as well as other evidence,

19 show that the rumours about the illegal conduct of the police and

20 unlawful conduct of police were not verified nor established. Contrary

21 to the assertions of the Prosecutor, evidence shows that persons

22 indicated in the list shown to witness Popovic became members of the

23 reserve forces as of 16th of August, 2001; that means after the Ljuboten

24 events. This fact that the individuals allegedly who had criminal

25 background whose names were shown to the witness Gjoko Popovski became

1 members of the reserve forces as of 16th of August, 2001 is based on the

2 Exhibit P92 --

3 THE INTERPRETER: Interpreter's correction: P292.

4 MS. RESIDOVIC: [Interpretation] ... which is in tab 17B, and P586

5 in tab 17D.

6 In addition to this, the sanctions for those individuals were

7 expunged as can seen from the Exhibit 1D329 in tab 17C, where the

8 Criminal Code establishes the time frame for expunging the previously

9 pronounced sentences or convictions.

10 In addition to this, the Prosecutor failed to prove that those

11 persons were under the effective control of the minister, nor had he

12 proven that those individuals participated in the Ljuboten events, or

13 that they had been perpetrators of any crime.

14 In addition to this, the Prosecutor failed to offer single proof

15 that the persons from the list (redacted) issued weapons after the

16 alleged order of Petre Stojanovski and Goran Mitevski had any criminal

17 background. Look at Exhibit 1D263 in tab 17, 1D264 in tab 17A.

18 In relation to these individuals, the Prosecutor failed to show

19 or prove that they had ever become de jure or de facto members of the

20 Ministry of Interior, nor that they had been under the control of

21 Minister Boskoski.

22 Ljube Boskoski had no knowledge about that issuance of weapons,

23 nor had any evidence been offered to corroborate this. Also, in the

24 course of procedure, the Prosecutor failed to offer any evidence that the

25 persons from the list of PSOLO, of 25th and 26th of July, 2001, had

1 criminal backgrounds. At any rate, there is no evidence that Ljube

2 Boskoski knew of any of the aforementioned issuance of weapons.

3 In relation to the carrying out of joint operations, in his

4 final -- in his closing arguments, the Prosecutor, it is the contention

5 of the Defence, changes his position about the joint operation in

6 Ljuboten village, transforming it into police operation. That would be

7 seen in paragraph 52 or from yesterday' closing arguments.

8 The Defence contends that this position is contrary to the

9 allegations in the indictment, that it is contradicting the evidence,

10 that the Prosecutor tries to introduce such transformation faced with the

11 undisputable evidence that the president of the republic was able to

12 order such operation and not the Minister Boskoski. As opposed to this

13 position, the evidence shows that all participants were under direct

14 control of the president.

15 In addition to this, in relation to carrying out of joint

16 operation and in relation to the position of the minister within the

17 joint operation, in paragraph 285 of his final brief, the Prosecutor

18 erroneously enumerates the competencies of the minister according to

19 which Minister Boskoski was able to issue orders. In this respect, Your

20 Honour, I'm referencing to the statement, testimony of General Galevski,

21 M-056, and paragraphs 337, 41, and 42 of the Defence closing arguments.

22 In relation to this, unfounded is the citing to the book of the

23 war in Macedonian which the Prosecutor quotes in paragraph 318 of the

24 closing arguments. In relation to this book, the Defence wishes to

25 stress particularly that no basis was established for the conclusions

1 drawn by the authors, that the Prosecutor failed to call authors as

2 experts nor witnesses to clarify their position, that the reliability of

3 their positions was not established, that the conclusions presented in

4 this book contradicted evident of viva voce witnesses, particularly

5 Dr. Markovski, General Galevski, General Jovanovski, Mario Jurisic,

6 Grozdanovski, and other witness who testified regarding those issues.

7 In addition to this, in paragraph 318, the Prosecutor unfoundedly

8 references the positions of the military expert Markovski, Exhibit 2D101,

9 paragraph 216, where Dr. Markovski speaks about the new law; completely

10 disregarding the assertions of experts in paragraphs 202 and 203 in

11 tab 21 of your binders, where Dr. Markovski explicitly notes that, in

12 2001, president acted pursuant to the old law, including the command over

13 the police.

14 In his evidence before this Court, transcript 10.660 to 10.662,

15 in your binders in tab 28.1 [as interpreted], Dr. Markovski particularly

16 indicates the original competence of the president to be in command of

17 both army and the police, and that they had the duty to carry out his

18 orders.

19 In paragraph 328 of the final brief, the Prosecutor completely

20 and erroneously highlights that Dr. Markovski confirmed that commanding

21 and management were synonyms. It is exactly the opposite, this

22 assertion. Dr. Markovski clearly indicated that principles of command in

23 the army do not exist in any other state body, and that synonyms are

24 actually the words rukovodjenje, upravuranje, and management. That was

25 the expert's contention on page 10.666, which is in tab 22 of your

1 binder.

2 So, in contradiction to the Prosecutor's assertion, he made a

3 clear distinction between the way in which it is acted within the army

4 and within the police.

5 In relation to the competencies of the president of the republic,

6 the Prosecutor, in paragraph 338, asserts that after the 9th of June, the

7 president was basing his decisions and orders on the new law. In

8 relation to this, the Defence presented its arguments in paragraphs 38 to

9 42, 115 to 121, and 334 to 341.

10 The exhibit that the Prosecutor relies upon to corroborate this

11 position actually testifies to the opposite. The decision quotes in the

12 preamble the new law, but it orders establishing of a new police unit and

13 provides authority to the minister in relation to this.

14 According to the standpoint of the Defence, the Prosecutor, with

15 regard to the de jure case, moves on to the de facto case in

16 paragraphs 269, 273, and 274 of his final brief.

17 JUDGE PARKER: Ms. Residovic, your time has expired unless you

18 have some arrangement.

19 MS. RESIDOVIC: [Interpretation] Yes, Your Honour. We do have an

20 arrangement. I will complete my arguments in five or six minutes, and

21 then Mr. Tarculovski Defence will continue. I do apologise for not

22 informing you of this on time.

23 JUDGE PARKER: Thank you.

24 MS. RESIDOVIC: [Interpretation] In connection to the allegations

25 in paragraph 275, where the Prosecutor claims that in Aracinovo, Minister

1 Boskoski issued an order, the Defence wishes to point out that the

2 withdrawal of the police from Aracinovo was conducted pursuant to an

3 order by the president, as can be seen in Keskovski, 9986 to 9988;

4 Dorevska, transcript 9663 to 9664; Stojanovski, 9118, 9259 to 9260.

5 In connection with the establishing of the headquarters of the

6 Ramno operative action, the Prosecutor misinterprets the evidence, where

7 I draw attention to transcript 9673 and 9678.

8 Your Honour, the Defence today attempted to draw attention to

9 only some of the evidence, indicating the lack of foundation for the

10 Prosecutor's allegations. The Defence final brief shows that the

11 Prosecutor has failed to prove beyond a reasonable doubt a single count

12 of the indictment, or any element that might establish the responsibility

13 of Mr. Boskoski.

14 I might say that the best defence of Mr. Boskoski is in the facts

15 you have heard in this case and the evidence you have admitted. All this

16 evidence indicates clearly and beyond any doubt that Minister Boskoski

17 took all necessary and reasonable measures in the given circumstances and

18 that the Prosecutor has not proved beyond a reasonable doubt a single

19 count of the indictment against Minister Boskoski.

20 For this reason, Your Honours, the only and the final motion of

21 the Defence based on the evidence adduced is that Mr. Ljube Boskoski be

22 acquitted of responsibility under all counts of the indictment.

23 Thank you.

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

25 [Trial Chamber confers]

1 JUDGE PARKER: Yes, Mr. Apostolski.

2 MR. APOSTOLSKI: [Interpretation] Good afternoon, Your Honours.

3 The Defence of Mr. Tarculovski will present its closing arguments, hoping

4 that we will not be repeating the facts stated in the final brief.

5 The Defence has prepared binders which I will ask the court usher

6 to distribute to you.

7 I will begin my closing arguments with the word of caution to the

8 Trial Chamber, that many parts of the Prosecution's brief are not

9 supported by authorities or references with which the Prosecution would

10 support its claim. Some of the claims of the Prosecution may be

11 misleading to the Trial Chamber, and we urge the Trial Chamber to

12 exercise caution in evaluating the Prosecutor's brief.

13 For example, in paragraph 123 of the written submission of the

14 Prosecution, as well as yesterday, the Prosecution claims that M-052

15 testified that when Atulla Qaili was allegedly beaten, he was severely

16 beaten when he was brought from the village into the Brace house and that

17 he knew that Mr. Qaili was going to die; however, the sequence of events

18 was not so described by M-052.

19 What the Prosecution is concealing is what M-052 testified in

20 fact, that first, Mr. Qaili was brought on foot by the forces that

21 entered into the village, that nobody from there group beat him, he had

22 light marks on his body, he could walk in a normal fashion, that later he

23 was severely beaten by army reservists who inflicted heavy injuries to

24 Mr. Qaili, and then M 52 stated that he knew that Qaili would die.

25 Furthermore, the claim that Mr. Tarculovski was seen in the Brace

1 house in the company of or in the presence of Minister Boskoski or during

2 the alleged cruel treatment, allegedly based on the evidence of

3 Witness M-037, is not correct. M-037 gave no evidence to that extent.

4 It was a statement read by the Prosecution, one that M-037 did not

5 approve or accept; rather, (redacted)

6 (redacted). In other words, M-037 gave no evidence that

7 would support the claims of the Prosecution on that point.

8 This is in paragraph 69 of the final brief of the Prosecution,

9 and I wish to point to the Court the testimony of M-037 of transcript

10 pages 837 to 876 which is to be found in tab 1 of the binder.

11 In paragraph 143, the Prosecution claims that M-039 testified

12 that the house of Qani Jashari was burned after the deaths of Xhelal

13 Bajrami, Bajram Jashari, and Kadri Jashari. The sequence of events in

14 the testimony of M-039 is different. He firmly claimed during the trial

15 that, first, the house was set on fire and that the persons jumped out

16 from the burning house. What the Prosecution is doing is trying to

17 improve the credibility of witness M-039 because such testimony is not

18 corroborated by witnesses M-088 and M-092, because the Prosecution does

19 not have proof from where and when these houses were burnt.

20 The Prosecution uses part of witnesses' testimony that suits

21 their case while ignoring those segments of the testimony that do not.

22 The Prosecution does not give explanation or reason for this evident

23 cherry-picking and does not succeed in facing up to all the evidence that

24 plainly contradict its case. For example, it uses the testimony of M-037

25 extensively, to the effect that he positively identified Mr. Tarculovski

1 in the village. However, it regards the part of the testimony to the

2 effect that the Hermeline did not have a machine-gun mounted on it,

3 contrary to the false evidence of, inter alia, Hutsch and several

4 villagers; and that three pieces of weapons and ammunitions were seized

5 after three NLA terrorists fleeing from the Jashari house were

6 neutralized.

7 Further, the Prosecution uses the map of Mr. Ostreni,

8 Exhibit P487, where the places under the control of NLA are marked with

9 yellow, in order to prove which territories of the Republic of Macedonia

10 were under the control of the NLA. However, this map shows that the NLA

11 considered Ljuboten to be under its control because the village of

12 Ljuboten is encompassed in the areas marked with yellow, and the

13 Prosecution still holds to its case that the NLA was not present in

14 Ljuboten.

15 The Prosecution acknowledges that there were at least ten to 15

16 combatants in the village -- Albanian combatants in the village, who were

17 opposing the advance of the police unit. The question then arises: Who

18 were they, if not the NLA? Unless the Prosecution is ready to consider

19 and address the evidence that does not fit their case, then their

20 submissions have no or little value.

21 Your Honours, the Prosecution is attempting to change some of the

22 theory of its case, in important segments of its case, that all victims

23 were innocent civilians. In the final brief, it is stated that it is

24 possible that they were hors de combat. The indictment does not list,

25 nor does it give adequate information or notice, that any of the alleged

1 victims might have been combatants hors de combat. The Defence had no

2 notice of such allegations, and would be prejudiced if this change in the

3 status of the victim is altered. If someone is hors de combat, that

4 means that prior to that, that someone was a combatant, and, therefore,

5 it is in contradiction to the Prosecution's case and theory that there

6 were no such people in the village.

7 The Prosecution, therefore, has to choose what theory it is

8 pursuing and to be candid about it. In the absence of any indication

9 that during the trial the Prosecution changes its theory about the status

10 of the alleged victims, there would be a need for questioning, for

11 instance, of Professor Markovski when a combatant, in fact, becomes

12 hors de combat. This is why this new theory should be ignored as it does

13 not form a part of the Prosecution case.

14 With regard to the alleged joint criminal enterprise, it should

15 be pointed out there is no case pleaded suggesting that the -- that a JCE

16 lasted or existed after the 12th of August, 2001. The allegations of the

17 Prosecution in this regard do not form part of the Prosecution's case and

18 should be disregarded. In fact, the indictment makes it clear that this

19 stopped on the 12th of August.

20 It should be made clear that the indictment does not plead such a

21 case; that there was no notice in the pre-trial brief about such a case;

22 there's no evidence to support such a case; and the allegations do not

23 pertain to any relevant witness.

24 The Prosecution alleges that the objective of the joint criminal

25 enterprise was the unlawful attack on civilians not justified by military

1 necessity. It is alleged that the plan about these deeds came in

2 existence on the 10th of August or, at latest, when the first crimes were

3 commented on 12th August 2001. Nonetheless, the Prosecution does not

4 rely on any specific evidence, although there are many relevant facts;

5 rather, it claims that the evidence considered in its totality

6 demonstrate the common purpose of the joint criminal enterprise.

7 Such vague construct is not supported by the jurisprudence of the

8 Tribunal. According to the law, there needs to be a common plan to

9 commit these crimes. It is up to the Prosecution to establish beyond a

10 reasonable doubt which of the deeds of the army, police, or the accused

11 Tarculovski amount to planning of these alleged crimes.

12 Evidence has been brought about several meetings on which the

13 operation was planned. The Prosecution did not point that on any of

14 these meetings there was a plan to kill civilians or to attack civilians.

15 To the contrary, on all meetings of the police and the army, the

16 objective was to neutralize the terrorist group NLA. In fact, it is

17 noticeable that the Prosecution never suggested to their witness, M-052

18 that he had participated in the JCE. In fact, the Prosecution did not

19 put such a case to him and said that he was not a suspect. Therefore,

20 the Prosecution theory is completely artificial and has no support in the

21 evidence.

22 Your Honours, the Defence submits that, in the village, there

23 were approximately 2.000 civilians and that the police and the army were

24 aware of this fact. However, the operation was not directed towards the

25 civilians or civilian facilities as the Prosecution claims. Defence did

1 not call any witness or evidence against disproportionate use of force.

2 This is not the Prosecution's case, and the Prosecution should not now be

3 allowed to change it because it would gravely prejudice the Defence.

4 The Prosecution should admit its failure to prove its case,

5 rather than to try to change it at the last minute. In any case, the

6 Prosecution failed to establish that the response was disproportionate to

7 the threat posed by the NLA in Ljuboten.

8 With a great deal of caution, the Defence will enter into a

9 discussion to the effect that the attack was proportionate targeting only

10 NLA members that were located in civilian houses in the village and on

11 positions around the village of Ljuboten.

12 The practical application of the principle of distinction

13 requires that those who plan or launch an attack take all feasible

14 precautions to verify that the targets attacked are neither civilian nor

15 civilian facilities, so as to spare civilians as much as possible. The

16 evidence at the trial showed that the army and the police had information

17 that even prior to the events from the 10th to the 12th of August, 2001,

18 the village of Ljuboten was used as a military and logistic base for the

19 purposes of the terrorist group NLA.

20 The army clearly established which houses were being used by the

21 NLA, the terrorist group NLA, which houses from the village of Ljuboten

22 were used by the NLA from the 10th to the 12th of August, 2001.

23 Eye-witnesses from the army stationed on the positions Smok and Bomba

24 identified at least four blocks of houses that were used by the NLA to

25 attack the army and police positions.

1 This information was sent through the chain of command to Major

2 Despodov, who ordered the army to open an attack on the targets. The

3 attack of the army and the police had five targets previously identified

4 by the army in the village, as well as the reinforcement of NLA coming

5 from Matejce and Bel Kamen.

6 The fact that no other part of the village was targeted proves

7 that army and police commanders did not expect excessive civilian

8 casualties. In fact, the targets were carefully selected being ones for

9 which the army was 100 percent sure that it was a place from where fire

10 was coming from by the NLA.

11 Your Honours, when a civilian facilitate is used for military

12 purposes, it loses its status as a civilian facilitate and becomes a

13 legitimate target. In this case, the evidence has shown that the NLA

14 used civilian facilities for military purposes. By deciding to do so,

15 the locations where the NLA was stationed or from where they were

16 shooting loses and lost its protective status.

17 The army and the police targeted only the houses for which there

18 was credible information of having NLA members or civilians taking part

19 in the hostilities, and the army did this taking whatever precautions

20 they could under the given circumstances. There was no carpet shelling

21 and no excessive use of force. What the NLA did was to use protected

22 persons, such as civilians, to render legitimate targets immune from

23 attack, an act prohibited by international humanitarian. The fact that

24 there might have been collateral damage, in particular to property, is a

25 consequence of the failure of the NLA to comply with basic requirements

1 of international humanitarian.

2 The failure of one party to adhere to the rule to separate

3 civilians from combatants does not result in obliterating the obligation

4 on the part of the other side to distinguish at all times between both

5 categories of people. However, the presence of civilians will not render

6 a target immune from attack; although, an attacker must exercise

7 reasonable precautions to minimise incidental or collateral injury to

8 civilian population or damage to civilian objects consistent with the

9 mission and allowable risk of attacking forces.

10 Combatants and other individuals directly engaged in hostilities

11 are considered to be legitimate and military targets and only combatants

12 are allowed to take part in the fighting. Further, the law of war

13 permits the attack of enemy combatants and equipment, and I quote, "at

14 any time, wherever located, whether advancing, retreating, or standing

15 still."

16 This is an quote from the report of the Defence Department to

17 Congress on the conduct of Persian Gulf War, appendix on the role of the

18 Law Of War, of 10th of April, 1992 -- 2002 [as interpreted].

19 The NLA was a threat to the local population as well as to

20 everyone else around the village and the city of Skopje, which the NLA

21 threatened to attack and shell. The NLA was also a direct threat to the

22 villagers of Ljuboten. It is the NLA that provoked the security forces

23 with shelling from rocket launchers on the 12th, morning, no doubt in an

24 effort to bring them in -- to bring in the Macedonian security forces

25 into the village.

1 The real culprit for what happened in the village are those

2 members of the NLA who thought it was acceptable to murder members of the

3 army and then go and hide among civilians, concealed as civilians. This

4 is a tactic that has proven to work on several occasions, as in Vaksince,

5 Aracinovo, Karpalak, Vejce, and other villages in Shar Planina.

6 The Macedonian security forces took every reasonable precaution

7 to minimise incidental or collateral injury to civilian population or

8 facilities. Due to the enormous precautions of the security forces, no

9 civilian was killed in the cross-fire. No women, no child, no elderly

10 person was hurt in the operation.

11 At this point, we should point out that the principle of the

12 presumption of a person or a target as civilian does not apply in the

13 context of a criminal trial. It is up to the Prosecution to establish

14 beyond a reasonable doubt that, one, the victims were indeed civilians;

15 and, two, that the alleged perpetrators of the crime knew of this and

16 acted despite this knowledge.

17 Your Honours, the operation was legal and constitutional, ordered

18 by the president, the Supreme Commander of the armed forces who had legal

19 authority to issue orders to the army and to the police. Mr. Tarculovski

20 was aware of this fact. Witnesses Keskovski and Despodov testified that

21 the president issued an order and that the forces on the ground acted

22 being aware of this order. Witness Jurisic testified that the troops on

23 the ground were aware of this order as well. Exhibit P304, a report of

24 the events of the army, notes this presidential order.

25 The Prosecution claims that such an order does not exist and that

1 the chain of command was not aware of it. However, the Prosecution uses

2 the testimony of M-052 extensively to substantiate its claims against the

3 accused, (redacted)

4 (redacted)

5 (redacted)

6 (redacted) Major Despodov would be in charge of taking measures

7 related to the combat activities.

8 This proves that Sokol Mitrovski was aware of the president's

9 order for undertaking operations in and around Ljuboten, and that Major

10 Despodov was aware of it. The Prosecution ignores this evidence which

11 directly contradicts their case.

12 The president, as Supreme Commander, received daily reports from

13 all intelligence units via sector commanders and the sector for security

14 and intelligence about events of the previous day; and in the case of

15 extraordinary events, the president was able to receive immediate reports

16 from his subordinates. The president received reports from the Ministry

17 of Defence, the intelligence agency, as well as from the services of

18 friendly intelligence services that were active in Macedonia; and on the

19 basis of this information, the president undertook measures and made

20 decisions.

21 The president of Macedonia had available all necessary

22 intelligence that -- that a battalion of the NLA was attempting to enter

23 the village of Ljuboten, to reinforce NLA members in the village, and

24 attack the security forces in Ljubanci and Rastak. This is Exhibit 2D42,

25 to be found in tab 2 of the binder.

1 There was information and intelligence that after the terrorist

2 attack on the 10th of August, 2001, when eight members of the Macedonian

3 army died and eight were injured, members of the NLA withdrew to Ljuboten

4 and took and established defensive position - this is Exhibit P301 which

5 is to be found in tab 4 of the binder, and Exhibit 2D44 in tab 5 of the

6 binder - and was aware of the fact that there were terrorists in the

7 village who were shooting from several positions in the village at the

8 army and that the army responded with their weapons. Exhibit 2D103, to

9 be found in tab 6, and Exhibit 1D85.

10 Every structure of the army and the police had information that

11 Ljuboten was a village full of NLA members and that many villagers were

12 members of the NLA. Even the OSCE had information that NLA has covert

13 presence in the village, and their presence was confirmed there by the

14 OSCE on the 14th of August, 2001. Exhibits 1D23, in tab 7 of the binder;

15 and Exhibit 1D24, in tab 8 of the binder. Reports from other

16 international observers in the area confirm that there were members of

17 the NLA in the village dressed in civilian clothing; Exhibit 1D24.

18 On 11 August 2001, Gzim Ostreni ordered the attack of the

19 villages of Ljubanci and Rastak, which is recorded in the log of the

20 1st Guardist Brigade on the 11th of August, 2001. This is Exhibit 1D85

21 and is located in tab 9 of the binder.

22 Moreover, the overall international community was aware that

23 there is NLA presence in the village, that the NLA is using civilian

24 facilities as military installations, that the NLA is using civilians as

25 human shields.

1 Your Honours, after the targets were neutralized and there was no

2 further resistance from the NLA in the village, the attack stopped. The

3 Prosecution did not establish that any of the victims was a civilian at

4 the time of the attack. The victims were either combatants or civilians

5 taking part in the hostilities or levee en masse. There is no excessive

6 damage to any civilian structures, only to houses that were used for

7 military purposes and these were the only ones attacked and damaged. It

8 must be pointed out that the remaining 300 and more houses were left

9 intact and were not touched by the security forces. It must also be

10 further noted that Macedonian houses in Ljuboten also incurred damage.

11 This is Exhibit P412.11 to P412.13.

12 One of the arguments that the Prosecution uses is the claim that

13 Ljuboten was a village without ready or prepared defence positions.

14 However, the Prosecution witness Bolton testified that there were,

15 indeed, villages which NLA presence in them without prepared defence

16 positions. Witnesses, including expert Dr. Markovski, testified that it

17 would be logical [as interpreted] to dig trenches in Ljuboten in view of

18 the fact that the army was located above the village, and these would be

19 easily spotted and neutralized.

20 Your Honours, on page 21 [as interpreted] of the transcript,

21 where it stated "logical," it should, in fact, be "illogical"; line 21 of

22 page 61 of the transcript.

23 As regards mens rea, the Prosecution must prove beyond a

24 reasonable doubt that such an attack must have been conducted with the

25 intent of having the civilian population or individual civilians, or

1 civilian structures as the object of the attack, or with reckless

2 disregard for the consequences. To the contrary, all actors in this

3 operation - the police and the army - acted with the understanding that

4 the attack -- the targets of the attack were NLA members in the village

5 of Ljuboten and the reinforcement that was coming from Matejce. There

6 was no proven intent to commit a crime or to target civilians.

7 Your Honours, allegedly, other members of the alleged joint

8 criminal enterprise were, including but not limited to, Zoran Jovanovski,

9 also known as Bucuk, owner of the Kometa security company; two brothers,

10 Aleksander and Vlado Janevski; Petre Stojanovski, member of the MOI;

11 Ljupco Bliznakovski, member of the MOI; and other unidentified employees

12 of the Kometa security agency who formed part of the police unit

13 allegedly led by Johan Tarculovski. It has not been proven that they

14 took part in this action.

15 Further evidence of misleading final brief of the Prosecution,

16 the Prosecution claims that criminals took part in the group that entered

17 Ljuboten. In paragraph 231, the Prosecution claims that the person

18 called Bucuk was known to be a criminal, and it bases its claim on

19 hearsay testimony of witness M-052, who testified that someone had told

20 him that Bucuk was a criminal and on the testimony of M-056.

21 Nonetheless, M-056 never mentioned Bucuk; and if one reads the footnotes,

22 he -- we can see that he has not stated this.

23 The Prosecution made a huge effort to find evidence of the

24 alleged group that entered the village, that they're criminals, that

25 criminal procedures were led against them. The investigators went to the

1 courts in Macedonia, to the public prosecutor's office of the Republic of

2 Macedonia, and to the Ministry of Interior; however, the only thing they

3 were able to find were some unproven criminal reports from the early

4 1980s that did not even result in an indictment.

5 Your Honours, the Prosecution uses the testimony of witness M-052

6 and the fact that he did not want to go to a meeting with the army on

7 10th August 2001 as further evidence of the criminal purpose. The

8 evidence of M-052 in this regard is yet another attempt by him to limit

9 his responsibility in the events and to avoid the criminal proceeding

10 against him.

11 The Prosecution relies on M-052 to try to establish a joint

12 criminal enterprise; however, M-052 is a completely dishonest witness,

13 who would do anything to avoid potential criminal proceedings, including

14 false testimony against others. Furthermore, the Prosecution never put

15 to M-052 that he was aware of such a criminal plan. We agree with the

16 submissions of the Boskoski Defence that M-052 is an unreliable witness

17 and that his evidence should be disregarded because, in its entirety,

18 it's false, unreliable, and self-serving.

19 Your Honours, the Prosecution claims that the alleged presence of

20 Tarculovski in Ljuboten is proof that he was part of the criminal

21 enterprise; however, there is credible evidence that Mr. Tarculovski was

22 there on the order of the president, with the aim of monitoring the

23 situation and informing him of it. Such practice to send his personal

24 security was used by the president in every major operation undertaken by

25 the security forces.

1 There is no evidence that with his activities, Mr. Tarculovski

2 overstepped the mandate given to him by the president. There is no

3 evidence by any crime witness that Mr. Tarculovski participated in any of

4 the alleged crimes, nor that he in any way assisted, encouraged, or lent

5 moral support to a crime, as the law requires.

6 Even if Mr. Tarculovski had assisted the operation, it does not

7 mean that he participated in the perpetration of any crime or assisted

8 any crime. Such participation of Mr. Tarculovski is not sufficient to

9 establish criminal responsibility. The Prosecution must prove beyond a

10 reasonable doubt that his contribution in the plan should be at least a

11 significant one and he must establish that he participated with the

12 necessary criminal mens rea. No such mens rea has been established.

13 Furthermore, not every type of conduct amounts to a significant

14 enough contribution to a common purpose to establish criminal liability

15 of the accused for the crimes committed. Even if the Trial Chamber were

16 to accept the testimony of witness M-037, that Mr. Tarculovski arrived at

17 the Jashari house after the death of the three NLA terrorists, this does

18 not mean that he was in control of the situation. In fact, M-037

19 testified that Mr. Tarculovski did not issue orders to anyone.

20 The Prosecution has not challenged the evidence of M-037 in this

21 regard. Even if the Trial Chamber were to adopt the testimony that the

22 weapons were shown to Johan, and that he commented that these were

23 weapons of terrorists, it reflects the state of mind of Mr. Tarculovski

24 who believed that the weapons that were shown to him came from the place

25 from where NLA terrorists were killed.

1 If the Trial Chamber adopts the testimony that Mr. Tarculovski

2 consulted with M-037 about some driving licences, it does not mean that

3 he acted outside the mandate given it him by the president to monitor and

4 to inform him of the situation. It was not alleged that he was present

5 at the location when the alleged crimes were perpetrated but afterwards.

6 Even if he were present, there is no sufficient evidence that

7 Mr. Tarculovski in any way assisted, encouraged, or lent moral support

8 for the alleged crime, as the law requires. This is seen in the

9 Haradinaj trial judgement in paragraph 179.

10 With regard to the theory that Mr. Tarculovski acted with intent

11 to further the criminal purpose, which he allegedly commented to M-037

12 when saying there is no need for an inspection of the dead bodies because

13 there is a state of war, such theory is flawed. It has not been proven

14 that Mr. Tarculovski gave such comments from the position of authority.

15 There is no evidence that Mr. Tarculovski had the competence or

16 the authority to order such an inspection. There is no evidence that it

17 would have been safe to do so to, to have such an inspection, and what

18 the purpose of such comments would be. Perhaps these were his private

19 comments. In fact, M-037 explicitly testified that Mr. Tarculovski did

20 not issue orders, and that the only reasonable inference is that he could

21 not have issued an order for inspection.

22 The Prosecution does not claim that he had the duty to

23 investigate. It is not established that he such an obligation. In fact,

24 this is evident from his role and position that he did not have such a

25 duty. It has not been established that it would have been possible under

1 the given -- to do so, given the circumstances.

2 Your Honours, the Prosecution is ignoring the obvious threats

3 posed by NLA activity in this area when claiming that on-site inspection

4 was possible while terrorists are shooting from the woods and the houses,

5 and that the NLA and the Kosovo Protection Corps are on an offensive from

6 Kosovo through Radusa to and from Matejce through Ljuboten to attack

7 Skopje.

8 Even the OSCE, when visiting the village on the 14th of August,

9 noted that there were NLA combatants in the village. To carry out an

10 investigation was the duty of other bodies, the prosecutor and an

11 investigative judge. The Prosecution alleges that Mr. Tarculovski was

12 commander of the unit that entered the village, but there is no evidence

13 that he gave an order to any member of the group that entered Ljuboten.

14 There is no evidence that any single one of them was subordinated

15 to him de jure, and this is not even alleged. There is no evidence that

16 any member of the group reported to him. There is no evidence that he

17 would have been able to control any of them, and there is no evidence

18 that he had any contacts with the members of the group during the

19 operation. There is no evidence that he had the power or the authority

20 to issue any orders to members of the army and to the Macedonian security

21 forces that took part in the operation.

22 There is no evidence that anyone sought his advice or approval

23 regarding any aspect of this operation. There is no evidence that

24 Mr. Tarculovski controlled any of the alleged unidentified perpetrators

25 at the time of the alleged crimes.

1 The Prosecution claims that Tarculovski drew his authority from

2 Ljube Boskoski. Still, Mr. Tarculovski never met Mr. Boskoski in or

3 around the village of Ljuboten. He had nothing to do with Mr. Boskoski

4 as regards the operation. He never discussed the operation with him. He

5 never called him during that weekend.

6 The claim of M-052 that Mr. Tarculovski came to (redacted)

7 (redacted) three to five weeks before the events in Ljuboten should be

8 disregarded as uncorroborated and false. It is claimed that this is

9 corroborated by witness M-053; however, M-053 testified that he saw

10 Mr. Tarculovski (redacted) only in August 2001, not three to

11 five weeks before the 10th of August, 2001.

12 M-052 even was caught lying in this regard, (redacted)

13 (redacted),

14 he claimed that Mr. Boskoski called him for the first time regarding

15 Johan on the 11th of August, 2001, on the day when the soldiers were

16 buried. Such tendency to invent things and to fabricate things will be

17 relevant to the Trial Chamber not to put any weight on this testimony.

18 As a further attempt to minimise his role and to avoid potential

19 responsibility, (redacted)

20 (redacted). On the contrary, Major Despodov testified

21 to the fact that Mr. Tarculovski did not ask for any fire support, and

22 the other representatives of the Ministry of Interior informed him that

23 there is an action in the planning and they requested such support.

24 Again, this participation of Mr. Tarculovski is in line with the

25 instruction of the president, to be on the ground and monitor the events.

1 Mr. Keskovski, head of the security of the president, testified

2 that sometimes he, himself, would establish a link between the president

3 and the forces on the ground.

4 The testimony of M-084, that Mr. Tarculovski received 50

5 bulletproof vests and six radios is uncorroborated. There is no record

6 of this happening; no other witness suggested that this has taken place.

7 Furthermore, even if this had happened, this is no proof of any

8 leadership role. Furthermore, person receiving such materials is

9 generally a lower-rank person who is tasked with receiving this

10 equipment.

11 As a further proof of the alleged criminal intent of the

12 operation, the Prosecution uses the alleged criminal background of

13 unidentified alleged participants in the action. To prove its assertion,

14 the Prosecutor says that, allegedly, two participants in the action had

15 committed crimes and had served prison sentences of two years in total,

16 in 1968 and 1985, respectively. However, even if that had been correct

17 that those persons had committed crimes in 1968 and in 1985, it does not

18 mean that they remain criminals throughout their lives; considering even

19 further that the fact was not proven that they had been in the village at

20 that time and participated in the alleged crimes. The fact that someone

21 has not perpetrated a crime since 1968, proves that the criminal, the

22 penal system works well and that the person has been rehabilitated.

23 JUDGE PARKER: Mr. Apostolski, is that a convenient point, do you

24 think?

25 MR. APOSTOLSKI: [Interpretation] Yes, Your Honours.

1 JUDGE PARKER: We will have the second break now, then, and

2 resume at 1.00.

3 --- Recess taken at 12.26 p.m.

4 --- On resuming at 1.03 p.m.

5 JUDGE PARKER: Mr. Apostolski.

6 MR. APOSTOLSKI: [Interpretation] Thank you, Your Honours.

7 The Prosecution failed to prove beyond a reasonable doubt that

8 the joint criminal enterprise took place and who were the members of it.

9 The Prosecution has not proven the common objective of the alleged JCE,

10 it being an unlawful attack on civilians and civilian objects, murder,

11 wanton destruction and cruel treatment in the village of Ljuboten.

12 On the contrary, although the burden of proof is not on the

13 Defence, it has proven that the NLA was present in the village of

14 Ljuboten; NLA had the ambitions to attack the villages of Ljubanci,

15 Rastak, as well as the city of Skopje; the NLA attacked the positions of

16 the Macedonian army and police early in the morning of 12th August, 2001,

17 with mortar fire and infantry weapons; at least five combat positions of

18 the NLA were identified in the village; international observers confirmed

19 the presence of NLA in the village; NLA had successfully targeted army

20 and police positions with snipers and machine-guns and infantry weapons;

21 and reinforcements were coming from Matejce to Ljuboten.

22 The majority of the killed NLA terrorists were wearing black

23 uniforms. There have been NLA terrorists mingling with the local

24 population. There have been NLA members wearing civilian clothes. In

25 one of the alleged victims pockets, ammunition was found. In two of the

1 alleged victims, belts were found on the chest under the clothes.

2 All those involved in the Ljuboten operation acted with the

3 awareness that NLA was present in the village of Ljuboten. NLA had

4 received the order to attack the villages of Ljubanci and Rastak in order

5 to further attack Skopje. The attack against the Macedonian army and

6 police was ordered -- the attack of the Macedonian army and police was

7 ordered by the president of the republic as The Supreme Commander. The

8 NLA members were mingling with the population wearing both civilian

9 clothes and black uniforms.

10 Your Honours, the Prosecution has failed to prove beyond a

11 reasonable doubt that the accused Tarculovski participated in any of the

12 alleged crimes or has significantly contributed to the execution of the

13 alleged common purpose. There is no evidence showing that

14 Mr. Tarculovski did anything different, other than to obey the order of

15 the president and to be on the ground and monitor the situation. Such

16 participation of Johan Tarculovski is not criminal by nature and does not

17 aid and abet any criminal plan. It was not shown that he has made a

18 significant contribution to any criminal plan.

19 The Prosecution failed to prove beyond a reasonable doubt that

20 the accused Johan Tarculovski shared an intent with the other alleged

21 perpetrators to commit the alleged crimes, or that he was aware that the

22 crimes of murder, wanton destruction, and cruel treatment were natural

23 and foreseeable consequences of the alleged objective of the JCE, and

24 that he knew that such crimes might be perpetrated by the group members,

25 and that he willingly took the risk by joining and continuing to

1 participate in the enterprise.

2 The Prosecution failed to prove that the accused Tarculovski had

3 sufficient knowledge that the additional crimes were a natural and

4 foreseeable consequence. Johan Tarculovski acted with the awareness that

5 the NLA was present in the village, and the action of the Macedonian

6 security forces was based on a presidential order.

7 It has not been established beyond a reasonable doubt that Johan

8 Tarculovski was aware at that time that the three killed individuals were

9 allegedly seen as unarmed civilians by him. On the contrary, weapons and

10 ammunitions such as the Macedonian army and police are not using were

11 found immediately after the killing of these people, and the weapons were

12 allegedly shown to Johan Tarculovski. Two of those individuals were

13 wearing black NLA uniforms, and the third one was wearing civilian

14 clothes; but in his pocket during exhumation, 26 pieces of live

15 ammunition were found which indicates the fact that, although he was

16 wearing civilian clothes, he had been a terrorist.

17 Having seen three killed terrorist, NLA members armed shows

18 Tarculovski state of mind that those were killed terrorists and not

19 civilians. It is alternatively indicated that Johan Tarculovski was

20 aware that the crime of murder, wanton destruction, and cruel treatment

21 were natural and foreseeable consequences of the attaining the objective

22 of the JCE. The Prosecution failed to prove that Johan Tarculovski

23 shared from the very beginning a joint criminal act to unlawfully attack

24 civilians or civilian facilities. He has not demonstrated an awareness o

25 the possibility or probability that such a crimes would take place.

1 The Prosecution asserted yesterday that, with regards to

2 existence of JCE, no agreement between the members was needed. It is

3 corroborated by paragraph 838 from Krajisnik verdict. However, the

4 Appeals Chamber of the Tribunal asserts that an agreement is needed in

5 order to establish criminal responsibility within the JCE, in appeals

6 verdict against Tadic, paragraph 227; and Vasiljevic, paragraph 100.

7 Your Honours, it is was not established that the Prosecutor [as

8 interpreted] has participated in the institutional criminal framework

9 willingly and with the awareness, that he had clearly or indirectly shown

10 his participation in the criminal conduct that the institutional or other

11 framework pertains to. In addition to joining the criminal plan and the

12 intention to commit a crime, he willingly took the risk that he or

13 another participant may perpetrate a crime that the former had foreseen.

14 It is up to the Prosecutor to prove that the accused had

15 knowledge of specific facts or circumstances showing the likelihood that

16 the other participant might commit a planned -- a crime that had not been

17 planned or concerted. It is, again, for the Prosecution to prove whether

18 the general circumstances of implementing the agreed plan were such as to

19 cause it to be extremely probably, therefore foreseeable, that other

20 additional crimes are to be committed.

21 It is clear that if the Prosecution fails to prove this, the

22 indictment should be rejected. It would be contrary to the principles of

23 fair trail to change the burden of proof and to request that the Defence

24 proves that the accused was not aware of the relevant facts or has

25 foreseen the crime and willingly took the risk knowing that a crime is to

1 be committed. The Defence knows that during military action, there is

2 also a risk that something unwanted may happen, as stipulated in Blaskic

3 Appeals Chamber judgement, paragraph 41. However, the knowledge of any

4 kind of risk, however low, does not suffice for the imposition of

5 criminal liability for serious violations of the international

6 humanitarian law.

7 The Prosecution case is that the crimes of murder and wanton

8 destruction were foreseeable for Mr. Tarculovski because they were

9 participants in the action who had criminal backgrounds and there was

10 violence against ethnic Albanians following NLA attacks against

11 Macedonian security forces, but this is wrong and this a story for small

12 children.

13 Firstly, it has not been proven that any participant in the

14 action had a criminal background as explained before. Secondly, it is

15 rather inappropriate to assert that there had been violence against

16 ethnic Albanians after NLA attacks. Such assertion is erroneous and it

17 is not corroborated by any evidence. It is true that after the massacres

18 that the NLA committed, there have been incidents by an organised mob

19 where Albanian, but not only Albanian, property was burned in Bitola and

20 Prilep, but no Albanian was injured or murdered. If the Prosecution has

21 accepted the testimony of Blagoja Markovski, it needs to accept as well

22 that he testified to the fact that in Prilep, the army barracks were

23 attacked as well by the mob.

24 Still, neither the police nor the army of took a part in such

25 violence. On the contrary, it was the police who arrested the

1 participants in the riots. The premise of the Prosecutor's theory are

2 erroneously defined. They would make sense if, after the NLA attacks,

3 the police would go to murder and arson in Albanian villages' properties.

4 That was not the case.

5 Your Honours, with regards to the criminal responsibility for the

6 crime of murder, the Trial Chamber must be satisfied beyond a reasonable

7 doubt that any of the victims was a civilian, who had not participated

8 actively in any way in the hostilities. If it has been proven that he

9 been killed by a police member, that they were killed with the intent,

10 that the murderer was aware of the fact that the victim had been an

11 unarmed civilian during the time of the killing, and that Johan

12 Tarculovski, himself, was aware of the protected status of the victims

13 and that they had been killed irrespectively of their status.

14 This should not be taken lightly because this is an element of a

15 crime, and this is a state of or evidence of the criminal nature of the

16 crime itself. It is the duty of the Trial Chamber to bring a conclusion

17 beyond a reasonable doubt that a victim was murdered or exclude the

18 possibility of him having taken part in the hostilities at the time of

19 the death, as seen in Haradinaj trial judgement, paragraph 286.

20 There is clear evidence that the army and the police shot only at

21 the NLA positions that were clearly identified. There is clear evidence

22 that it was the army who killed the NLA terrorists who were fleeing the

23 Jashari house. The Prosecution is misleading the Trial Chamber with the

24 map, Exhibit P595. However, the eye-witness, Grozdanovski, testified

25 that the map is not correct. Even the Prosecution, in its indictment,

1 when find it is suitable for them, asserts that the position Smok of the

2 army of the Republic of Macedonia is 300 metres away from Ljuboten. This

3 is in tab 12. The Jashari house is on the part Ljuboten facing the Smok

4 locality.

5 The Prosecution also disregards the testimony of M-088 and M-092

6 (redacted), and they testified

7 to the fact that the fire (redacted) was coming from the army position

8 and from behind. Further on, the Prosecution is concealing that,

9 according to the autopsy and ballistic report, Kadri Jashari was hit with

10 one bullet of unknown calibre; and in the rest of the ballistics report,

11 it is impossible to identify all of the bullets found in their bodies.

12 However, a bullet of 7.9 millimetres was recovered in the cemetery near

13 the victims, and it was sent for ballistic expertise; Exhibit 1D222.

14 Further on, it is a testimony of the army that they shot not only

15 with snipers, but also with Kalashnikov. Any of them could have caused

16 the death of the alleged victims. It was even proven that some of the

17 alleged victims were wearing black uniforms, such as the ones that the

18 NLA was using and are in evidence. It is rather strange to see why

19 civilians would wear black jackets and trousers in summer at a

20 temperature of 40 degrees centigrade.

21 It was not established beyond a reasonable doubt that Johan

22 Tarculovski was aware when three killed individual -- that the three

23 killed individuals that he had allegedly seen were unarmed civilians. On

24 the contrary, arms and ammunition that the Macedonian army and police

25 were not using were immediately seized and immediately shown to --

1 allegedly shown to Johan Tarculovski. The Defence does not oppose the

2 contention that Johan Tarculovski had in good faith a belief that there

3 had been NLA members in the village. That is in paragraph 58.

4 Having allegedly seen three killed NLA terrorists carrying

5 weapons, reflects the state of his mind that those killed were combatants

6 and not civilians, and that the participants in the action were only

7 targeting members of the terrorist group NLA.

8 With regards to the wanton destruction, Your Honours, the

9 destruction of property did not occur on a large-scale, neither was

10 excessive. The attack by the police and the army was targeting the NLA

11 that were in and around the village. It was a textbook example of attack

12 carried out bearing in mind the principle of proportionality. Only

13 houses that were with 100 percent certainty identified as NLA positions

14 were targeted.

15 Also, because of the density of the area where the houses were

16 damaged, it might have occurred that some of the adjacent houses were

17 collateral damage in order to achieve the military objective. Still, it

18 was the NLA 40 decided to use civilian property as a military

19 installation, and they are the real culprits for the damage to the

20 property.

21 As the property was used as military installation, it was not

22 protected pursuant to the laws of an armed conflict. It has not been

23 established beyond a reasonable doubt that the perpetrators acted with

24 the intent to destroy property or with reckless disregard of the

25 probability that property would be destructed [as interpreted] all the

1 participants in the operation, both from the army and the police, acted

2 with the awareness that it was at those very location that the NLA

3 terrorists were located, terrorists who were now resisting the police and

4 the army.

5 The Prosecution argues that it was not possible for the army to

6 have destroyed the houses used by the NLA. Then what happened with at

7 least 60 mortars and cannon grenades which fell exactly at the position

8 where the houses were located. However, in the annex A to the

9 indictment, the Prosecution identifies at least four houses that were

10 damaged by mortar impact. As proven, the Albanian houses had in their

11 yards gasoline and other farming equipment that could have ignited the

12 fire.

13 Even if the police damaged houses with hand-grenades or infantry

14 weapons, it was done in order to dissolve the resistance given by the

15 NLA. It is not strange in urban warfare that hand-grenades are used

16 against houses where it reasonable to believe that the enemy was located.

17 Johan Tarculovski did not share any plan or criminal intent to

18 destruct civilian property on a large-scale in the village of Ljuboten.

19 Mr. Tarculovski was not seen on the locations where allegedly civilian

20 property was destroyed, nor has he assisted or contribute to the

21 execution of the alleged crimes.

22 With regards to mens rea, it is up to the Prosecution to prove

23 beyond a reasonable doubt that Johan Tarculovski acted with the intention

24 to destroy property in question or in reckless disregard of the

25 likelihood of its destruction. There is no evidence that any of the

1 properties were arsoned intentionally. The confirmed presence of NLA

2 combatants in the civilian houses or their usage of civilian houses and

3 religious facilities as military installations, not only in Ljuboten, but

4 all over Macedonia, would be relevant for any inference sought to be

5 drawn as to the state of mind of Mr. Tarculovski at the time.

6 With regard regards to cruel treatment, Your Honours, there is no

7 proof that Mr. Tarculovski had witnessed any of the alleged cruel

8 treatment, nor that he had been aware of any form of misconduct, nor that

9 he had, himself, contributed to such treatment. There is no evidence

10 that he had been seen at Brace's house or another location.

11 Witness M-037 never testified that Johan Tarculovski had seen

12 that some individuals were mistreated. None of the five witnesses from

13 the Ametovski house recognised Johan Tarculovski as having been present

14 at the time of the alleged cruel treatment.

15 In regards to ordering, Your Honours, Mr. Tarculovski did not

16 have the authority to issue orders to anyone, nor did he do so as it was

17 explained before, nor was he a commander of the unit. There is no

18 evidence of him issuing a single order, let alone an order to commit a

19 crime. The theory of the Prosecution is that, as commander of the unit,

20 he issued orders to subordinates to kill, cruelly treat, and burn houses.

21 Such evidence simply does not exist.

22 The alternative theory of the Prosecution is that he acted with

23 awareness of a substantial likelihood that crimes would be committed. As

24 an example, the Prosecution lists the events in Bitola and Prilep.

25 However, as it was explained already, no Albanian was hurt during these

1 events. The crimes against the property committed in Bitola and Prilep

2 was committed by mobs, not by the police. The Prosecution theory that,

3 whilst leading the police unit in an Albanian village, he should have

4 been aware that crimes can occur is very dangerous and completely

5 illogical.

6 Such dangerous theory would tie the hands of every

7 counter-terrorist unit in the world not to attack terrorist, because

8 previously civilians had burned houses in other parts of the country.

9 The question, then, that arises is: What should have the security forces

10 have done? To sun-bathe while watching the NLA shooting at them or

11 attacking the villages of Ljubanci and Rastak in taking positions to

12 attack Skopje?

13 With regard to planning, Your Honours, with regards to planning,

14 the Prosecution uses the same theory. However, an inference that Johan

15 Tarculovski planned an attack cannot reasonably be drawn from the fact

16 that he was present at one of the meetings between the army and the

17 police. Furthermore, any proven involvement in the planning of a

18 legitimate anti-terrorist operation would not constitute evidence as to

19 his involvement in the planning of the crime.

20 The witness Despodov [as interpreted] testified that he was there

21 only to inform himself whether Major Despodov had received order, and it

22 was clear that other persons from the Ministry of Interior and the army

23 planned the activities related to Ljuboten. There is no evidence to show

24 that Johan Tarculovski did anything other than obey the order of the

25 president, to be present on the ground for the purpose of monitoring the

1 situation. At this meeting, no plans to attack civilians were presented.

2 As for instigation, Your Honours, the Prosecution, again,

3 attempts to misguide by claiming that Mr. Tarculovski was present at the

4 Ametovski house. The testimony of M-037 is different. He claims that he

5 saw Johan Tarculovski on the street, not inside any house, and then saw

6 him trying to get information regarding some driving licences. M-037 did

7 not testify that he saw him beating anyone, nor did he see

8 Mr. Tarculovski being there at the time when the alleged beating

9 occurred, nor that he in any way assisted, encouraged, or lent moral

10 support for the alleged cruel treatment as the law requires, nor given

11 any order to that extent.

12 Should the Prosecution rely on the evidence of M-037, it should

13 rely on its entirety, not only to extract pieces of it out of context.

14 The comment which the Prosecution uses for their claims that

15 Mr. Tarculovski said that the three dead terrorists was directed only at

16 M-037 and it was said that three weapons were shown to Mr. Tarculovski.

17 What was he, in fact, supposed to say? That these are civilians fighting

18 for human rights with Kalashnikov?

19 In any way, this behaviour of Mr. Tarculovski does not step

20 outside the assignment given to him by the president. The theory of the

21 Prosecution that Mr. Tarculovski encouraged the perpetrators by saying

22 that the terrorists were here and instigated them to commit crimes is

23 completely outside the time-frame and the given context. After the death

24 of these three terrorists, no alleged crime occurred in Ljuboten. After

25 the terrorists were neutralized, who were at the last position of the NLA

1 in the village, the group withdrew towards Ljubanci and left the other

2 persons intact. No child, no women, or elderly person was injured.

3 The intention of the group was to kill civilians, that they would

4 go from house to house killing everyone that came in their way, and they

5 are at least 250 houses in Ljuboten. The question, again, rises: Why

6 were only the positions that were identified as NLA positions by the army

7 acted upon? Why did the group on the ground not proceed to other houses

8 and kill another 2.000 civilians or burn 300 houses?

9 Another question that comes to mind is why the security forces

10 could not enter Ljuboten prior to the arrival of the Hermeline. Why

11 could not they have just proceeded as in parade from one part to another

12 part of Ljuboten. Why did witness Sedat Murati, on page 4105, testify

13 that the security forces who were in the village of Ljuboten were

14 frightened that someone might shoot at them? The damage and the

15 casualties are consistent with anti-terrorist operations in urban areas

16 and not with a plan to target civilians or civilian property.

17 Regarding aiding and abetting on the part of Johan Tarculovski,

18 the Prosecution does not pursue the theory that Tarculovski, as the

19 alleged leader of the group, had the obligation to prevent or punish the

20 alleged perpetrators; therefore, we will not be discussing this issue.

21 There is no allegation to that effect in the indictment, nor was this

22 mentioned in the final statement. There is no evidence that

23 Mr. Tarculovski made substantial contribution to any of the crimes

24 charged.

25 Even if it were to shown that he has helped with the preparation

1 of the operation, there is no evidence that he thereby assisted in the

2 committing of the crime. According to the state of mind of

3 Mr. Tarculovski, the operation was legal, and there was no suspicion [as

4 interpreted] that the operation is directed against the NLA.

5 There is no evidence that Mr. Tarculovski was present on the

6 ground of any of the alleged sites or that he encouraged anyone by his

7 presence. There is no evidence that Mr. Tarculovski possessed the

8 relevant mens rea in relation to any of the crimes charged. It has not

9 been established, for example, that Mr. Tarculovski was aware that his

10 acts assist in the perpetration of a specific crime of the principle

11 perpetrator.

12 Lastly, what the Prosecution is doing is wrong. Its method to

13 rely on evidence that suit them, while ignoring evidence that does not,

14 including evidence from its own witnesses, is wrong; and in our view, it

15 is not conducive to the Chamber determining the truth of these events.

16 In theory, that armed forces anywhere in the world should not

17 attack its adversary because crimes against property committed by a

18 civilian mob happened 200 kilometres away in a different context is

19 wrong. The theory that someone is a criminal because in 1968 that person

20 had committed a crime and served a prison sentence of one and a half year

21 and should be treated throughout his whole life as a criminal is wrong.

22 We have full faith in the Trial Chamber that it will evaluate

23 evidence objectively and will establish whether there were really crimes

24 committed in Ljuboten and will then consider about the alleged

25 responsibility of Mr. Tarculovski.

1 The action of the security forces in Ljuboten, in Radusa, were a

2 successful response to the terrorist group, NLA, to attack Skopje from

3 two directions and merge with the two battalions clothed in civilian

4 clothing that were already in Skopje.

5 The action of the security forces was essential to stop the

6 attempt of the terrorist group, NLA, to drag Macedonia into civil war and

7 gave the chance to the legitimate political parties to proceed with the

8 signing of the Ohrid Framework Agreement.

9 Looking at the entire case which is before you, the only thing

10 that can be concluded is that he did not commit the alleged crimes, nor

11 did he act with awareness that his deeds would assist to the perpetration

12 of these alleged crimes.

13 Johan Tarculovski acted legally, obeying the orders of the

14 president, who was then and remains still perceived as one of the biggest

15 peacemakers on the Balkans, and he should not be punished for it.

16 Acquittal is not only a just decision but the only just decision

17 for this Chamber.

18 JUDGE PARKER: Thank you very much, Mr. Apostolski.

19 MR. APOSTOLSKI: [Interpretation] Thank you, Your Honours.

20 JUDGE PARKER: We have concluded the addresses of Defence

21 counsel. Tomorrow, there will be an opportunity for all counsel to

22 respond, and we will adjourn now, to resume at 9.00 a.m. tomorrow morning.

23 --- Whereupon the hearing adjourned at 1.39 p.m.,

24 to be reconvened on Thursday, the 8th day of May,

25 2008, at 9.00 a.m.