Tribunal Criminal Tribunal for the Former Yugoslavia

Page 38

1 Monday, 18 April 2005

2 [Further Initial Appearance]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.05 a.m.

6 JUDGE ESER: Good morning, ladies and gentlemen. Would the

7 registrar please call the case.

8 THE REGISTRAR: Good morning, Your Honour. This is IT-04-82, the

9 Prosecutor versus Ljube Boskoski and Johan Tarculovski.

10 JUDGE ESER: Good morning, Mr. Johan Tarculovski. Can you hear

11 the proceedings in a language that you understand to make this as clear as

12 the first thing?

13 THE ACCUSED: [Interpretation] [No audible response].

14 JUDGE ESER: May I now have the appearances for the Prosecution.

15 MR. SMITH: Good morning, Your Honour. Bill Smith for the

16 Prosecution with Hasan Younis as case manager.

17 JUDGE ESER: Thank you.

18 And appearances for the Defence.

19 MR. APOSTOLSKI: [Interpretation] Antonio Apostolski, Defence

20 counsel of the accused Johan Tarculovski.

21 JUDGE ESER: Thank you very much.

22 Mr. Tarculovski, on the strength of the order by Judge Agius on

23 the 5th of April this year, the Presiding Judge of Trial Chamber II, I

24 became the pre-trial judge. My name is Albin Eser; I come from Germany.

25 Mr. Tarculovski, at the initial appearance conducted by Judge

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1 Agius on the 20th of March this year, you chose not to enter a plea of

2 guilty or not guilty. According to Rule 62 of the Rules of Procedure and

3 Evidence of this Tribunal, you are to be called upon to enter a plea

4 within 30 days after the initial appearance. This is the reason why we

5 have gathered again today to enable you to do so.

6 First of all, I would like to remind you once more that you have

7 the right to remain silent. That is one of your basic rights. In other

8 words, no one can force you to answer or to say anything.

9 Mr. Tarculovski, you are represented by Mr. Apostolski. Do you

10 have anything to say about your being represented by this Defence counsel?


12 JUDGE ESER: No. Thank you. Mr. Tarculovski, you already

13 confirmed at the initial appearance that you have been provided with the

14 copy of the indictment in your own language. Now you are entitled to have

15 a fresh reading of the indictment, in full, if you wish to do so. Do you

16 wish to have the indictment read out to you?

17 THE ACCUSED: [Interpretation] There is no need.

18 THE INTERPRETER: I think he said.

19 JUDGE ESER: There is no need to read it? No? Okay. Yes, thank

20 you.

21 Now pursuant to Rule 62(A), subparagraph (iii), you have the right

22 to enter a plea of guilty or not guilty on each count of the indictment.

23 Should you fail to enter a plea now, I shall enter a plea of not guilty on

24 your behalf. Is this clear to you? That if you do not say anything, it

25 will be considered as a plea of not guilty and it would have to be

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1 expressed by me.

2 Now, Mr. Tarculovski, do you wish to enter a plea to this hearing

3 today?

4 THE ACCUSED: [Interpretation] Yes.

5 THE INTERPRETER: Could you please remind the accused to use the

6 microphone because we are lipreading from the screen instead of...

7 JUDGE ESER: Could you please get a little bit closer to the

8 microphone because the interpreter has problems -- has a problem to hear

9 you.

10 Now, in view of your waiver, the whole indictment will not be read

11 out to you. I will just read out to you the three charges contained in

12 the indictment and then I will ask you how do you plead to that charge,

13 guilty or not guilty. Your answer, in each case, should be guilty or not

14 guilty, as the case may be. So you should not add anything else.

15 Now, Mr. Tarculovski, would you please stand up.

16 [The accused stands up]

17 JUDGE ESER: The first count which you are charged with is a

18 charge of murder, a violation of the laws or customs of war, recognised

19 under Article 3(I)(a) of the Geneva Convention of 1949 and punishable

20 under Article 3 of the Statute of this Tribunal. For this count, you are

21 charged with individual criminal responsibility pursuant to Article 7(1)

22 of the Statute.

23 How do you plead, guilty or not guilty?

24 THE ACCUSED: [Interpretation] I am not guilty.

25 JUDGE ESER: The second count, which you are charged with is a

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1 charge of wanton destruction of cities, towns and villages, a violation of

2 the laws or customs of war, punishable under Article 3(b) of the Statute

3 of the Tribunal. For this count, you are charged with individual criminal

4 responsibility pursuant to Article 7(1) of the Statute.

5 How do you plead, guilty or not guilty?

6 THE ACCUSED: [Interpretation] I am not guilty.

7 JUDGE ESER: Okay. The third count which you are charged with is

8 a charge of cruel treatment, a violation of the laws or customs of war, as

9 recognised by Article 3(I) of the Geneva Conventions of 1949 and

10 punishable under Article 3 of the Statute of the Tribunal. For this

11 count, you are charged with individual criminal responsibility pursuant to

12 Article 7(1) of the Statute.

13 How do you plead, guilty or not guilty?

14 THE ACCUSED: [Interpretation] I am not guilty.

15 JUDGE ESER: Now I would like to ask the registrar to note that

16 Mr. Tarculovski has pleaded not guilty to the three counts of the

17 indictment. You may sit down now.

18 [The accused sits down]

19 JUDGE ESER: As a result of these pleas, the registrar will take

20 note that the trial must be fixed in due course.

21 Now, there are some other issues perhaps to be raised. Pursuant

22 to Rule 60 bis (A), a Status Conference is to be convened within 120 days

23 of this initial appearance. That means around the middle of August of

24 this year. The purpose of this Status Conference is twofold. First, to

25 organise exchanges between the parties and facilitate expeditious

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13 English transcripts.













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1 preparation for trial and, second, to review the status of this case and

2 to allow the accused the opportunity to raise any issues, including his

3 mental and physical conditions.

4 For the time being, the accused will remain in custody.

5 Next I would like to refer to the supporting material which

6 accompanied the indictment against the accused. Pursuant to

7 Rule 66(A)(i), within 30 days of the initial appearance of the accused,

8 all the supporting material which accompanied the indictment must be made

9 available to the Defence counsel in a language which the accused

10 understands. The time limit is about to expire.

11 Now, Mr. Smith, from the Prosecution, could you confirm that that

12 disclosure of the supporting material has already been made in an

13 appropriate form?

14 MR. SMITH: Thank you, Your Honour.

15 In relation to the disclosure of the supporting material, the

16 Prosecution will be able to meet that deadline. However, on the last

17 occasion Judge Agius stated the initial appearance was continuing and that

18 would affect in fact the disclosure date of the supporting material. He

19 stated that the 30 days would start in fact from today and finish in 30

20 days time.

21 As it occurs, Mr. Boskoski, the co-accused, has been before this

22 court on the 31st of March and will providing the supporting material

23 within 30 days from the 31st of March and, at the same time, we'll be able

24 to --

25 JUDGE ESER: 31st of March?

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1 MR. SMITH: He appeared -- sorry, he appeared on the 1st of April.

2 My apologies, Your Honour. And at the same time we would provide the

3 supporting material to this accused which would be by -- I think it's by

4 the 1st of May.

5 It is a little bit confusing, the fact that Judge Agius had said

6 previously that the initial appearance would be continuing. But he did

7 explicitly state at the last hearing that the 30 days would start from

8 this date, the finish of the initial appearance. We would -- we would

9 have provided the supporting material before this date in any event.

10 However, the translation of the material has been quite an extensive

11 exercise. As Your Honour is aware, there was about 1.000 pages of

12 material supporting the indictment, and the translation services have been

13 working as fast as they can. And so I would ask that that interpretation

14 be taken from Judge Agius's hearing in relation to the time that we have

15 to provide the supporting material to the accused. But I do admit it is a

16 bit confusing.

17 JUDGE ESER: Now just to make it clear, what would be the really

18 final date, according to your own...

19 MR. SMITH: It would be -- final date in relation to

20 Mr. Tarculovski would be 30 days from now. However, as Mr. Boskoski

21 appeared here on the 1st of April, we would supply the supporting material

22 to both accused by the 1st of May.

23 JUDGE ESER: May I ask the Defence. Would that be agreeable to

24 you? It would still not be 30 days from now as it was suggested by Judge

25 Agius in the first initial appearance, but it would be even earlier.

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1 MR. APOSTOLSKI: [Interpretation] Your Honour, the Defence agrees

2 to have the documentation disclosed by 1st of May, and if there are

3 problems with translation of the materials, it is possible that be

4 received in English as well. So this is what concerns me as a Defence

5 lawyer.

6 JUDGE ESER: But now, of course, we are also obliged to make it --

7 put the accused in a position to read it. So perhaps you could agree in

8 this way, that at least until the May 1st, it will be disclosed and

9 transmitted in English and then later on it should be made also accessible

10 to the accused. Would that be agreeable to you?

11 MR. SMITH: Your Honour, that's agreeable. But I do believe that

12 the supporting material would be provided in both languages by that date.

13 I've been given that confirmation by the translation services so we should

14 be able to meet that obligation.

15 JUDGE ESER: That would be even better. I thank you very much for

16 your cooperation. Thank you. Thank you very much.

17 Now, relating to the issue of this disclosure, the Defence counsel

18 has a 30-day period for filing any preliminary motion pursuant to

19 Rule 72(A). Once it has received all the supporting material, the 30-day

20 time limit has commenced running since that date, but it will now run from

21 the date which we have just fixed, which will be the 1st of May.

22 Now, I am aware of the preliminary motion filed by the Defence

23 counsel on March 31, 2005. As you already know, as the Prosecution had

24 time to file a response to this, the response has been -- just arrived and

25 so far I didn't have a chance to go through it, but you can be sure that I

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1 will take care of it as soon as I am in a position to do so and then you

2 will get a further order in this respect. Okay?

3 Now, is there any other matter, that you wish to raise at this

4 stage of the proceeding?

5 MR. SMITH: No. Thank you, Your Honour.

6 JUDGE ESER: Thank you.

7 Is there any matter which the Defence wants to raise at this

8 moment?

9 MR. APOSTOLSKI: [Interpretation] For the time being, not. For the

10 time being, we don't have anything.

11 JUDGE ESER: I would like to ask the accused: Since you are

12 detained in the detention unit, as far as being detained, is everything

13 all right? Are you treated in a proper manner?

14 THE ACCUSED: [Interpretation] Yes.

15 JUDGE ESER: Ladies and gentlemen, that brings us to the end of

16 this appearance. We will now adjourn the appearance to another day.

17 Thank you very much.

18 --- Whereupon the Further Initial Appearance

19 adjourned at 9.20 a.m.