Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Wednesday, 19 May 2010

 2                           [Appeals Judgement]

 3                           [Open session]

 4                           [The Appellant Tarculovski entered court]

 5                           --- Upon commencing at 9.30 a.m.

 6             JUDGE ROBINSON:  Will the Registrar please call the case.

 7             THE REGISTRAR:  Thank you, Your Honour.  This is case number

 8     IT-04-82-A, the Prosecutor versus Ljube Boskoski and Johan Tarculovski.

 9             JUDGE ROBINSON:  I am to ask Mr. Boskoski whether he can follow

10     the proceedings through the translation.

11             MR. BOSKOSKI: [No interpretation]

12             JUDGE ROBINSON:  And Mr. Tarculovski, are you able to follow the

13     proceedings through the translation.

14             THE APPELLANT TARCULOVSKI: [Interpretation] Yes, Your Honour.

15             JUDGE ROBINSON:  Thank you.

16             May I have the appearances now for the Prosecution.

17             MR. ROGERS:  Your Honours, good morning.  Paul Rogers appearing

18     for the Prosecution, together with Laurel Baig and our Case Manager today

19     Mr. Colin Nawrot.

20             JUDGE ROBINSON:  Thank you.  And for the Defence of Mr. Boskoski.

21             MS. RESIDOVIC: [Interpretation] Good morning, Your Honours.

22     Edina Residovic, lead counsel, together with Guenael Mettraux co-counsel,

23     representing Ljube Boskoski.

24             JUDGE ROBINSON:  Thank you very much.  And the Defence of

25     Mr. Tarculovski.

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 1             MR. N. DERSHOWITZ: [Via teleconference]  Nathan Dershowitz on

 2     behalf of Mr. Tarculovski along with Jordan and Antonio Apostolski.

 3             JUDGE ROBINSON:  Thank you very much.  Today the Appeals Chamber

 4     delivers its Judgement in this case.

 5             Following the practice of the Tribunal, I will not read the text

 6     of the Judgement except for the disposition.  Instead, I will summarise

 7     the issues on appeal and the findings of the Appeals Chamber.  This

 8     summary is not part of the written Judgement, the written Judgement will

 9     is the only authoritative account of the Appeals Chamber's rulings and

10     reasons.  Copies of the written judgement will be made available to the

11     parties at the conclusion of this hearing.

12             The case concerns the events during and subsequent to a police

13     operation conducted on the 12th of August, 2001, in the village of

14     Ljuboten, situated in the northern part of the former Yugoslav Republic

15     of Macedonia, also known as the FYROM, and I will refer to it as the

16     FYROM.  At the relevant time, Ljube Boskoski was the minister of the

17     interior of the FYROM, and Johan Tarculovski was a police officer.

18             The Trial Chamber found Johan Tarculovski guilty of ordering,

19     planning and instigating murder, wanton destruction and cruel treatment,

20     all violations of the laws or customs of war under Article 3 of the

21     Statute.  He was sentenced to a single sentence of imprisonment of 12

22     years.  Ljube Boskoski was acquitted on all charges.

23             Mr. Tarculovski has presented seven grounds of appeal,

24     challenging his conviction and sentence.  The Prosecution has appealed

25     Mr. Boskoski's acquittal.

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 1             I will first address Johan Tarculovski's grounds of appeal and

 2     then turn to the Prosecution's appeal, following which, the disposition

 3     will be read.

 4             In his first ground of appeal, Mr. Tarculovski submits that the

 5     conflict in the FYROM during the relevant period between FYROM security

 6     forces and the National Liberation Army, also known as the NLA, did not

 7     reach the level of an armed conflict as it did not meet the threshold

 8     requirement of intensity.

 9             The Trial Chamber did not err in concluding that the intensity of

10     the conflict in the FYROM and the NLA's features identifying it as an

11     organised armed group were such that an internal armed conflict existed

12     in the FYROM in August 2001.  The Appeals Chamber sees no error in this

13     finding.

14             Mr. Tarculovski further contends that the Tribunal's exercise of

15     jurisdiction over this case is improper as the Tribunal did not determine

16     whether the government of the FYROM lawfully ordered the operation in

17     self-defence to root out terrorists from amongst the villagers.

18     Moreover, he argues that the exercise of jurisdiction by the Tribunal is

19     contrary to the actions of the United Nations Security Council.

20             The Appeals Chamber considers that the fact that a state resorted

21     to force in self-defence in an internal armed conflict against an armed

22     group does not, in and of itself, prevent the qualification of crimes

23     committed therein as series violations of international humanitarian law.

24     Moreover, the United Nations Security Council did not state that the

25     situation in the FYROM was outside the Tribunal's jurisdiction.

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 1             Consequently, this ground of appeal is dismissed in its entirety.

 2             In his second ground of appeal, Mr. Tarculovski submits that the

 3     events in Ljuboten on the 12th of August, 2001 did not violate the laws

 4     or customs of war, since they were the result of a sovereign state's

 5     legitimate and proportionate response to an internal terrorist attack.

 6     He also questions the applicability of the laws or customs of war in

 7     determining individual criminal responsibility for a person assigned to

 8     carry out a legitimate operation planned by a sovereign state.

 9             The Appeals Chambers finds that the application of rules

10     applicable in armed conflict is not affected by the legitimacy of the use

11     of force by a party to the armed conflict.  Therefore, the fact that a

12     state is acting in lawful self-defence against terrorists in an internal

13     armed conflict does not render Common Article 3 inapplicable.  Nor is it

14     relevant for determination of whether a representative of this state has

15     committed a serious violation of international humanitarian law during

16     the exercise of the state's right to self-defence.  Accordingly, the

17     Trial Chamber did not err in applying the laws or customs of war in the

18     present case.

19             This, the second ground of appeal, is dismissed in its entirety.

20             In his fifth ground of appeal, Mr. Tarculovski contends that the

21     Trial Chamber improperly rejected the testimony of entire categories of

22     witnesses, while it later selectively relied upon this testimony.

23             The Appeals Chamber observes that the Trial Chamber took a

24     careful approach to the evaluation of the evidence provided by these

25     categories of witnesses.  Mr. Tarculovski has not demonstrated any error

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 1     in the Trial Chamber's acceptance of certain parts of their testimony and

 2     its rejection of other parts.

 3             And, consequently, this, the fifth ground of appeal is dismissed.

 4             Under parts of his third, fourth, and fifth grounds of appeal,

 5     Mr. Tarculovski submits that the Trial Chamber erred when it held that to

 6     incur criminal liability for acts prohibited under Common Article 3 it

 7     must merely be established that the victims for the alleged violation

 8     were not taking an active part in the hostilities when the crime was

 9     committed.  He argues that the Prosecution must also show that the

10     perpetrator was aware or should have been aware of this protected status

11     of the victim.

12             In light of the principle of individual guilt, the

13     Appeals Chamber is satisfied that it must be proven that the perpetrator

14     of a Common Article 3 crime knew or should have been aware that the

15     victim was taking no active part in the hostilities when the crime was

16     committed.  Although there are no explicit findings in this regard in the

17     Trial Judgement, when that Judgement is read as a whole, it is clear that

18     the Trial Chamber examined whether the direct perpetrators knew or should

19     have been aware of the protected status of the victims in relation to

20     each crime.  This argument is, therefore, dismissed.

21             In his fourth ground of appeal, Mr. Tarculovski contends that the

22     evidence was insufficient to find that murder, wanton destruction, and

23     cruel treatment were established beyond a reasonable doubt.

24             The Appeals Chamber is satisfied, however, that the Trial Chamber

25     identified the perpetrators of the three charged murders as men belonging

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 1     to the police group led by Johan Tarculovski.  The evidence was also

 2     sufficient to establish beyond a reasonable doubt the circumstances of

 3     the killing of each victim and the circumstances of the cruel treatment,

 4     as well as the status of the victims and the mens rea of the perpetrators

 5     thereon.  Mr. Tarculovski has failed to show that the Trial Chamber's

 6     findings in these respects were erroneous.

 7             Regarding the wanton destruction of 12 houses, Johan Tarculovski

 8     has not shown any error in the Trial Chamber's findings that none of the

 9     houses caught fire accidentally or through the shelling by the FYROM army

10     or the NLA; that it was the police who started the fire; and that none of

11     the houses were used for military purposes when they were set on fire.

12             This ground of appeal is dismissed.

13             In his third ground of appeal, he submitted that the

14     Trial Chamber erred in its application of the modes of liability of

15     planning, instigating, an ordering under Article 7(1) of the Statute.

16             In relation to planning, the contention is that the Trial Chamber

17     erred in concluding that the predominant object of the police operation

18     in Ljuboten on the 12th of August, 2001 was to indiscriminately attack

19     ethnic Albanians and their property.  He claims that the evidence shows

20     that the police operation was to eradicate NLA members, who were

21     described as terrorists, from Ljuboten.  He also maintains that it could

22     have been the FYROM President or higher officials of the Ministry of

23     Interior who planned it.

24             The Appeals Chamber finds no error in the Trial Chamber's

25     findings that the predominant object of the operation was to

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 1     indiscriminately attack Albanian villagers and property; that

 2     Johan Tarculovski had the necessary intent; and that he was involved in

 3     the planning of the operation.  The possible involvement of other persons

 4     in the planning of the operation does not impact on the Trial Chamber's

 5     finding that Johan Tarculovski was criminally responsible for planning

 6     the attack.

 7             With regard to instigating and ordering, Johan Tarculovski

 8     contends that the Trial Chamber erred in convicting him under these modes

 9     of liability as there was no evidence suggesting that he prompted or

10     instructed any other person to commit a crime.  In respect of ordering,

11     he also maintains that there was no evidence showing that he had de jure

12     or de facto authority to order killings, burnings or beatings.  Moreover,

13     he submitted that the Trial Chamber erred in finding that he had the

14     mens rea to order that specific crimes be committed, although it could

15     not determine who ordered the operation.

16             The Appeals Chamber finds no error in the Trial Chamber's finding

17     that Johan Tarculovski prompted and instructed police members to commit

18     the crimes at issue and that he had a position of authority to compel

19     them to commit the crimes.  The fact that he was ordered to lead the

20     operation does not exonerate him from criminal responsibility if, in the

21     execution of the order, he, in turn, instructed other persons to commit a

22     crime.

23             Accordingly, this ground of appeal is dismissed.

24             Mr. Tarculovski's sixth ground of appeal concerns his statements

25     to a commission established by the Ministry of Interior to investigate

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 1     what had occurred in Ljuboten.  He maintains that the admission of these

 2     out-of-court statements was not in conformity with Rule 89 of the

 3     Tribunal Rules of Procedure and Evidence and the general principles of

 4     law.  He also vers that since the Trial Chamber considered that the

 5     statements were reliable in admitting them into evidence it should have

 6     given credence to the statements in his favour.  The Appeals Chamber

 7     considers that the Trial Chamber was entitled to admit, pursuant to

 8     Rule 89, the statements as accurately representing Johan Tarculovski's

 9     evidence before the commission.  The general principles of law do not

10     dictate the exclusion of out-of-court statements.  The Appeals Chamber

11     also finds that the Trial Chamber properly weighed the statements in

12     light of other evidence.

13             Accordingly, the sixth ground of appeal is dismissed.

14             In his seventh ground of appeal, Mr. Tarculovski asserts that the

15     Trial Chamber erred in sentencing him to 12 years imprisonment.  In

16     particular, he submits that the Trial Chamber failed to consider as a

17     mitigating circumstance the fact that he was carrying out orders of those

18     senior to him.  He further maintains that the Trial Chamber failed to

19     consider that the FYROM later granted amnesty to those involved in both

20     sides of the conflict.

21             The Appeals Chamber considers that the Trial Chamber did take

22     into account that Johan Tarculovski was carrying out orders of unknown

23     persons, when assessing the gravity of the offences.  Moreover, the

24     relevant legislation of the FYROM contains a provision that those who

25     committed criminal acts falling within the jurisdiction of the Tribunal

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 1     are excluded from the grant of amnesty.  Moreover, the Trial Chamber was

 2     not bound by the FYROM sentencing practices.

 3             The seventh ground of appeal is dismissed.

 4             I turn now to the Prosecution's appeal against the acquittal of

 5     Mr. Boskoski.

 6             The Prosecution submits that the Trial Chamber committed an error

 7     of law when it incorrectly required under Article 7(3) of the Statute

 8     that a superior need only provide a report to the competent authorities,

 9     which was likely to trigger an investigation into the alleged criminal

10     conduct.

11             The Appeals Chamber is satisfied, however, that the Trial Chamber

12     correctly held that a superior may, under specific circumstances,

13     discharge his obligations to punish an offending subordinate by reporting

14     to the competent authorities, provided that this report is likely to

15     trigger an investigation or initiate disciplinary or criminal

16     proceedings.

17             In the alternative, the Prosecution submits that the

18     Trial Chamber erred in fact in finding that Mr. Boskoski had taken the

19     necessary and reasonable measures to punish his offending subordinates.

20     In particular, the Prosecution submits that reports provided by the

21     Ministry of Interior to the competent judicial authorities were incapable

22     of triggering a criminal investigations into the events in Ljuboten.

23             The Appeals Chamber observes that the Trial Chamber was aware

24     that the notifications made by the Ministry of Interior to the judicial

25     authorities were not fully adequate.  The Trial Chamber also recognised

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 1     that no normal police investigations were carried out with respect to the

 2     relevant events.  However, the Trial Chamber held that the notifications

 3     ought, in the ordinary course, to have led the judicial authorities to

 4     conduct a proper investigation.

 5             In reaching this conclusion, the Trial Chamber particularly noted

 6     that the notifications brought the deaths of ethnic Albanians to the

 7     attention of the competent authorities and while suggesting one cause,

 8     left the cause of death open.  Furthermore, the evidence indicates that

 9     the notifications were made on the 12th and 14th August, 2001, and that

10     an investigation team was immediately set up by the competent judicial

11     authorities and attempted to conduct an on-site investigation in

12     Ljuboten.  The evidence also shows that Mr. Boskoski was informed of

13     these notifications and the investigation attempt.  The Trial Chamber

14     found that the serious failure to adequately investigate on the basis of

15     the police reports to the judicial authorities was not attributable to

16     Mr. Boskoski, as the judicial authorities were not under his ministerial

17     authority.  The Trial Chamber also held that there was no basis for

18     concluding that he tried to interfere impermissibly in the investigations

19     or that he was aware of the failure of the police to perform their normal

20     functions.  The Prosecution has not shown that these findings were

21     erroneous.

22             The Appeals Chamber holds that the Trial Chamber did not err when

23     it found that the notifications ought in the ordinary course, to have led

24     the judicial authorities to conduct a proper investigation in the events

25     in Ljuboten.  Based on this finding, the Trial Chamber held that it was

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 1     not shown that Mr. Boskoski failed to take the necessary and reasonable

 2     measures.  In the circumstances of this case, it was open to a reasonable

 3     trier of fact to acquit Mr. Boskoski of failure to punish responsibility

 4     on the basis of information given to the judicial authorities.

 5             The Trial Chamber did not commit a factual error when it arrived

 6     at this conclusion.

 7             As a result, the Prosecution's appeal is dismissed in its

 8     entirety.

 9             I will now read out the disposition of the Appeals Judgement.

10             Mr. Boskoski and Mr. Tarculovski, will you please rise.

11             For the forgoing reasons, Appeals Chamber, pursuant to Article 25

12     of the Statute and Rules 117 and 118 of the Rules of Procedure and

13     Evidence;

14             And noting the respective written submissions of the parties and

15     the arguments they presented at the hearing on the 29th of October, 2009;

16             Sitting in open session;

17             Dismisses Johan Tarculovski's appeal in its entirety;

18             Dismisses the Prosecution's appeal in its entirety;

19             Affirms the acquittal of Ljube Boskoski and the sentence imposed

20     by the Trial Chamber against Johan Tarculovski, subject to credit being

21     given under Rule 101(C) of the Rules for the period Johan Tarculovski has

22     already spent in detention; and

23             Orders, in accordance with Rule 103(C) and Rule 107 of the Rules,

24     that Johan Tarculovski is to remain in the custody of the Tribunal,

25     pending the finalisation of arrangements for the transfer to the state in

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 1     which his sentence will be served.

 2             Judge Liu appends a separate opinion.

 3             Mr. Boskoski, Mr. Tarculovski, you may be seated.

 4             The Registrar will deliver a copy of the Judgement to the

 5     parties.

 6             The hearing is adjourned.

 7                           --- Whereupon the hearing adjourned at 9.59 a.m.