Tribunal Criminal Tribunal for the Former Yugoslavia

Page 239

1 Wednesday, 4 April 2007

2 [Ruling]

3 [The accused not present]

4 --- Upon commencing at 3.11 p.m.

5 JUDGE PARKER: Can the case be called, please.

6 THE REGISTRAR: Good afternoon, Mr. President, Your Honours. This

7 is case number IT-04-82-PT, The Prosecutor versus Ljube Boskoski and Johan

8 Tarculovski.

9 JUDGE PARKER: Thank you very much.

10 The Chamber is sitting today as part of its pre-trial preparation

11 for the trial of this case. The Chamber specifically indicated through

12 its officers that there was no need for counsel to attend. The record

13 would reveal the matters we were dealing with. Nevertheless, we're

14 delighted to see that some counsel has taken the trouble to be here.

15 Mr. Saxon, you appear for the Prosecution?

16 MR. SAXON: Yes, Your Honour, together with my colleague

17 Ms. Joanne Motoike.

18 JUDGE PARKER: Thank you.

19 And Ms. Residovic.

20 MS. RESIDOVIC: [Interpretation] Mr. Presiding Judge, I am Edina

21 Residovic and I defend the interest the Mr. Boskoski.

22 JUDGE PARKER: Thank you very much.

23 Now, the Chamber, as presently constituted, has now been formerly

24 pointed both to complete pre-trial matters and from the 12th of April to

25 conduct the trial. There were early orders of Judge Agius as Presiding

Page 240

1 Judge of Trial Chamber II in respect of the pre-trial composition of the

2 Chamber, and they have now been supplemented by two orders of the

3 President of the 30th of March, and one of Judge Agius of the 2nd of

4 April.

5 Strictly, between the 30th of March and the 2nd of April, there

6 were four Judges constituting the Pre-Trial Chamber because Judge Agius

7 was still a member. That was corrected by his order of the 2nd of April.

8 To ensure there is no confusion, we now confirm the six Rule 92 bis and 92

9 ter decisions and the decision on protective measures that were issued on

10 Friday, the 30th of March, 2007. It was felt important that they issue to

11 give the parties as much notice and time as possible.

12 The Chamber, having been constituted now with a view to conducting

13 the trial, there are a number of other motions that are relevant to the

14 preparation and conduct of the trial, and it is important for all

15 concerned that these be dealt with and decided as quickly as possible.

16 We propose today to deal in brief oral decisions with six,

17 strictly speaking seven, of those motions. The remaining ones are more

18 complex and there will be written decisions delivered in the near future,

19 and I find that even now more motions are coming in. We will do our best

20 against the movement of the tide.

21 The first of the decisions that we deliver today is in respect of

22 the Prosecution's motion for permission to add additional exhibits to its

23 first amended exhibit list with confidential annexes A to E, which was

24 filed on the 16th of January, 2007. The Boskoski Defence has responded,

25 no responses has been made by the Tarculovski Defence, and there was a

Page 241

1 reply by the Prosecution.

2 The Prosecution seeks to add four documents to its first amended

3 exhibit list which was filed on the 31st of March, 2006. The Boskoski

4 Defence opposes this. The first amended exhibit list was filed pursuant

5 to an order of the then Pre-Trial Chamber that the Prosecution should do

6 so no later than 31st of March, 2006.

7 Now, the four documents are document 989, a photograph of the dead

8 body of one of the victims alleged to be a victim of one of the charges of

9 murder in the indictment. It is intended that this photograph be tendered

10 through a Prosecution witness. The photograph was disclosed to the

11 Defence on the 16th of August, 2006. It is submitted by the Prosecution

12 that it was accidently omitted from its first amended exhibit list.

13 The second document is 990, a record of permissions issued by the

14 Macedonian government to the Office of the Prosecutor for access to

15 classified information. Part of this document is also a list of documents

16 scanned from various archives of the Ministry of Interior which were

17 included in the Prosecution's first amended exhibit list. This document

18 was disclosed to the Defence on the 31st of March, 2006, but inadvertently

19 omitted from its first amended exhibit list. The Prosecution regards this

20 document as relevant to establishing both the authenticity and the chain

21 of custody of documents included in its list.

22 The third is document 991, a list of documents provided by the

23 Macedonian government to the Office of the Prosecutor in March 2006. Many

24 of these documents are included in the first amended exhibit list.

25 Document 991 appears to have been disclosed on the 16th of January, 2007.

Page 242

1 Again, the Prosecution would rely on this as relevant to establishing the

2 authenticity and the chain of custody of other documents.

3 Document 992 contains annexes to the witness statement of an

4 intended witness, Mr. Bouckert. It is proposed to be tendered through

5 that witness.

6 These documents were not included in the first amended exhibit

7 list due to oversight. They were included -- sorry, they were disclosed

8 to the Defence on the 28th of April, 2006 in English and on the 23rd of

9 May, 2006 in Macedonian. The same documents are also the subject of a

10 separate Prosecution motion to allow additional attachments to the written

11 statement of Mr. Bouckert, which was filed on the 12th of January 2007.

12 As the submissions are in fact identical, the Chamber will deal with this

13 issue in the context of this decision and this motion and will regard the

14 motion of the 12th of January, 2007 as mute.

15 This is the seventh motion to which I adverted when saying that we

16 will be giving six decisions.

17 Finally, in the motion, the Prosecution clarify that a fifth

18 document, being minutes of a meeting of the 12th of November, 2003 of a

19 commission investigating events in Ljuboten, was in fact already included

20 on its exhibit list and, therefore, no leave to add this document was

21 sought, contrary to what had been earlier indications of the Prosecution.

22 The Boskoski Defence opposes the motion on the grounds that these

23 documents should have been included in the first amended list and that

24 good cause has not been demonstrated, arguing that mere oversight or

25 omission is not a good cause. It is also said that the addition of these

Page 243

1 documents will cause prejudice, and it questions the relevance of the

2 documents 991 and 992.

3 At the outset, relevant both to this motion and other motions to

4 be dealt with today, we would emphasise there is a difference between the

5 admission of a document into evidence as an exhibit and the inclusion of a

6 document into the Rule 65 list. The purpose of the list is to give notice

7 to the Defence, that Prosecution intends to rely on the document. This

8 notice allows the Defence to prepare its case accordingly. In some cases,

9 it will be clear that a proposed exhibit is obviously irrelevant and that

10 it will not admitted for that or for some other reason. Where that is

11 clear, it is in everyone's interest that the Chamber decide this pre-trial

12 to exclude that document from the case and to avoid the need for time to

13 be wasted on it in preparation.

14 In many cases, however, the issues affecting the admissibility of

15 a proposed exhibit are not clear or are disputed. In those cases, it is

16 usually necessary to defer decision about the admission of the document

17 until the relevant evidence is placed before the Chamber. If there is

18 then an objection to its admission, that objection can be the subject of a

19 decision which is reached on the basis of the actual relevant evidence,

20 not simply on disputed submissions of counsel.

21 The documents which the Prosecution now seeks to add to its Rule

22 65 ter list by this motion appear to be relevant to or to provide more

23 detail of the Prosecution case. These documents were disclosed to the

24 Defence in August 2006, March 2006, April 2006, May 2006, and January 2007

25 respectively. That is well before the start of the trial. The motion

Page 244

1 concerns only four out of almost one thousand documents the Prosecution

2 intends to tender during the trial.

3 In the view of the Chamber, the Defence will have sufficient time

4 to prepare its Defence with respect to these documents. No prejudice will

5 be caused to the Defence if these documents are added to the Prosecution's

6 Rule 65 ter list, even though this is after the deadline prescribed by the

7 Pre-Trial Chamber last year.

8 Despite the failure of the Prosecution in these respects to meet

9 its obligations of timeliness, it is in the Chamber's view understandable

10 that a few documents were overlooked, given the number to be considered so

11 that we feel there is good cause sufficiently demonstrated.

12 The Chamber therefore grants the motion.

13 The second motion concerns a second expert report by Dr. Simon

14 Eichner with an annex, the motion having been filed on the 30th of

15 January, 2007. Only the Boskoski Defence responded. There were two

16 further Prosecution replies and a further Defence response because of an

17 issue that rather distracted the attention of counsel for some time.

18 On the 30th of the January this year, the Prosecution submitted a

19 second expert report from Dr. Simon Eichner. He is from the Bavarian

20 State Institute of Criminology. The Prosecution submits it has both

21 relevance and probative value to its case insofar as it relies on joint

22 criminal enterprise, to the charge of murder, and to the issue of the

23 measures undertaken by the Macedonian police to investigate the events in

24 Ljuboten.

25 The Prosecution indicates that it requested assistance in respect

Page 245

1 of these matters to the government of Macedonian on the 11th of July,

2 2005, seeking to be provided with three fire-arms said to be seized at

3 Ljuboten on the 12th of August, 2001, which is the first of the three days

4 the subject of the specific charges in the indictment. These weapons were

5 transported to Germany for analysis by Dr. Eichner on the 18th of May,

6 2006. His report was not completed until the 15th of January, 2007, and

7 that report was disclosed to the Defence some few days later, on the 24th

8 of January.

9 The Boskoski Defence opposes the application, submitting that the

10 Prosecution has failed to comply about the deadline of the disclosure of

11 the expert reports which was also the 31st of March, 2006; that the report

12 irrelevant and unnecessarily would prolong the proceedings; further, that

13 is correct until the 24th of January this year, they had no notice that

14 such a report had been requested; and that it took the OTP, the Office of

15 the Prosecutor, more than five and a half years to obtain the report.

16 In this last respect, the Chamber would mention that the

17 indictment was only confirmed on the 9th of March, 2005. No action of

18 that type could reasonably have been expected until after that, and the

19 Prosecution then acted, in this respect, within four months of that

20 confirmation.

21 A preliminary procedural question was raised by the Defence that

22 the Prosecution's reply introduced new arguments not included in their

23 main submission. It was said they included matters not included in the

24 indictment and the pre-trial brief and of which the Defence had no notice.

25 The Prosecution in replying to this relies on and further

Page 246

1 clarified an argument made when it initially submitted the report. This

2 sufficiently demonstrated, in the Chamber's view, that there is no new

3 argument or issue, and it also demonstrated the relevance. There is no

4 reason, therefore, for the Prosecution's request for leave to file a reply

5 to be denied.

6 On analysis, it is sufficiently apparent that the report is both

7 relevant to and could offer support to the Prosecution's original case,

8 which is that the Macedonian police force -- police forced ethnic Albanian

9 residents of Ljuboten to sign certain fire-arm seizure records under

10 coercion, to indicate that those persons had been in possession of

11 fire-arms and ammunition when in fact the fire-arms had actually been

12 seized by the police from another location.

13 The Prosecution case is that this is capable of revealing the real

14 object of the alleged joint criminal enterprise; that is, to direct an

15 unlawful attack on civilians and civilian objects in the village of

16 Ljuboten, an attack not justified by military necessity, which is, of

17 course, the subject of a specific charge in the current indictment.

18 Having regard to those matters, the Chamber is of the view that

19 the report has apparent probative value. Although it is clearly out of

20 the time fixed for expert reports, the circumstances show a sufficient

21 good cause within Rule 127. It is the view of the Chamber that the

22 interests of justice favour the report being the subject of evidence when

23 Dr. Eichner is called as has always been intended. This will, therefore,

24 be allowed by the Chamber.

25 The third motion is one in which the Prosecution sought leave to

Page 247

1 add (redacted), Dr. Jacovski and (redacted), to the

2 proposed second amended witness list and also to have leave to remove two

3 witnesses, one Georgievski and Ramadani, with annexes A to C from that

4 list. The motion was filed on the 1st of March this year. There has been

5 a response from the Boskoski Defence and a reply by the Prosecution.

6 The two additional witnesses are a forensic pathologist,

7 Dr. Jacovski, and (redacted), who, it is submitted,

8 will provide a mixture of both fact and expert evidence about injuries

9 allegedly suffered by victims named in the indictment. Dr. Jacovski

10 conducted the autopsy on one of the victims, and the Prosecution seek to

11 rely on his evidence as relevant to establishing the existence of the

12 joint criminal enterprise alleged, that the crimes charged with a natural

13 and foreseeable consequences of that joint criminal enterprise, that the

14 victim was murdered as alleged in the indictment, and that residents of

15 Ljuboten were subjected to beatings and other forms of cruel treatment as

16 alleged in the indictment.

17 (redacted) examined two people who had been detained by the

18 police and brought by them to the Skopje city hospital from Ljuboten on

19 the 13th of August, 2001. They are both named in the indictment as

20 victims of cruel treatment. Her proposed evidence, as indicated in the

21 report, deals with the injuries of these two detainees. The proposed

22 evidence also suggests that unknown persons altered records that she

23 produced with respect to these two detainees by typing through words of

24 hers "hit by the police" and in other respects.

25 The Prosecution would seek to rely on this evidence with reference

Page 248

1 to the existence of the alleged joint criminal enterprise, the allegations

2 of cruel treatment, and also the allegations that an adequate

3 investigation was not conducted.

4 The Prosecution had requested the assistance of the authorities of

5 Macedonia to contact these two witnesses only in January 2007. It

6 interviewed and took signed statements from them in February and Dr.

7 Jacovski's statement was disclosed on the 16th of February and (redacted).

8 (redacted) on the 23rd of February, 2007.

9 The Boskoski Defence opposes the motion to add these two witnesses

10 on the grounds that the proposed evidence is not relevant, a violation of

11 the time fixed for the disclosure of the statements of expert witnesses,

12 and that the Prosecution has not acted with due diligence, and that it

13 would be prejudiced, in particular, by the need for additional

14 investigation and preparation.

15 The Prosecution as a preliminary matter notes that the Boskoski

16 Defence response was filed out of time.

17 In the Chamber's view, the two proposed witnesses, at least in

18 part, are expert witnesses and, therefore, the 30-day deadline provided by

19 Rule 94 bis should apply, and on that basis the Defence response was

20 within time.

21 The Rules of Procedure and Evidence do not directly govern the

22 present situation. Rule 73 bis (E) actually permits the Prosecution, even

23 after the commencement of a trial, to file a motion to vary the number of

24 witnesses that are to be called, and this may be allowed where it is in

25 the interests of justice to do so. The Chamber will approach the present

Page 249

1 motion on that same basis.

2 Of course, the requirements for the admissibility of evidence are

3 relevance and probative value in accordance with Rule 89(C). Further, in

4 accessing where the interests of justice lie in respect of this motion,

5 the Chamber must consider whether the contemplative probative value of the

6 evidence would be substantially outweighed by the need to ensure a fair

7 trial, in particular whether the interests of the Defence will be

8 adequately protected.

9 The proposed witnesses are doctors who have examined victims

10 shortly after they received injuries that are alleged in the indictment.

11 The proposed evidence is, therefore, apparently relevant and apparently of

12 probative value. The expert statements were disclosed on the 16th of

13 February and the 23rd of February of this year respectively. Earlier than

14 that, copies of the report of the autopsy conducted by Dr. Jacovski on the

15 same victim as is the subject of his expert report was disclosed to the

16 Defence as early as the 7th of November, 2005. Further, while in December

17 2006 the Prosecution and the Boskoski Defence were able to agree as to the

18 fact of death of several residents in Ljuboten, no agreement was reached

19 with respect to the person the subject of Dr. Jacovski's evidence.

20 A similar agreement was reached between the Prosecution and the

21 Tarculovski Defence in February 2007, again, not with reference to this

22 alleged victim.

23 With respect to (redacted), it appears that the Prosecution

24 sought the assistance of the Macedonian authorities to view medical

25 records at the Skopje city hospital pertaining, among others, to the two

Page 250

1 persons that are the subject of her proposed report and also to interview

2 (redacted) on the 29th of January this year. Similar requests for

3 assistance with access to these records had been filed twice in 2003, but

4 there had been no response from the Macedonian government.

5 In view of the fact that in the case of Dr. Jacovski an autopsy

6 report pertaining to the same victim was written and disclosed to the

7 Defence in November 2005, and that the possibility of an agreement about

8 death was clearly being explored near the end of 2006, although

9 unsuccessfully, the Chamber is persuaded that there exists good cause for

10 the late filing of Dr. Jacovski's report, further considering that efforts

11 had been made by the Prosecution to obtain the hospital records upon which

12 (redacted) new report are based, is based and had sought to obtain

13 those as early as 2003.

14 The Prosecution is also satisfied that good cause exists for the

15 late filing of her expert statements as this information was not in fact

16 obtained from the Macedonian government until early this year.

17 Turning next to the issue of prejudice to the Defence, the two

18 proposed reports have been disclosed to the Defence approximately two

19 months before the anticipated start of the trial. The Defence has been on

20 notice of the expected evidence of Dr. Jacovski since November 2005. In

21 light of these matters, in the view of the Chamber, the rights of the

22 accused will not be prejudiced, so long as there is sufficient time to

23 prepare the Defence in respect of these additional statements.

24 It appears that this could well be achieved if there is more time

25 before the evidence of the proposed two witnesses is heard. The Chamber

Page 251

1 notes they are not listed as early Prosecution witnesses. Of course, if

2 more time than this is needed, this can be sought.

3 With respect to the motion insofar as it seeks the deletion of two

4 existing witnesses from the list, there is no opposition and there appears

5 no reason why this should not be granted.

6 For these reasons, this motion is granted.

7 The fourth motion is that of the Boskoski Defence, dated the 8th

8 of March this year, in respect of Rule 68 compliance. The Defence submits

9 that most of the material disclosed by the Prosecution, pursuant to Rule

10 68, falls outside the scope of the rule and is often irrelevant to the

11 charges. I say this was first raised as long ago as April 2006 at a Rule

12 65 ter hearing.

13 Following a request from the Defence, the Prosecution had provided

14 the Defence with a list of 148 search criteria which was used for the

15 purpose of identifying potential Rule 68 material. That having been done,

16 the Defence asked the Prosecution to give an indication of the steps taken

17 by the Prosecution to review that material, and it did so twice, in

18 January and February of this year, but the Prosecution had not responded

19 and declined to do so.

20 In essence, what the Defence is saying, in the Chamber's view, is

21 that the Prosecution cannot satisfy its Rule 68 obligation by merely

22 dumping material on to the Defence and leaving it to the Defence to

23 identify the relevant documents, and they seek a number of orders directed

24 to precluding the Prosecution from following the course it has been

25 following in this respect.

Page 252

1 For its part, the Prosecution submits that it has fully complied

2 with its Rule 68 obligations and, in particular, has actively reviewed the

3 material in its possession to identify material that should be disclosed.

4 It says that it commence the Rule 68 disclosure in December 2005, that it

5 has performed electronic searches of nearly 65.000 documents, of which

6 just over 5.000 were then passed to the trial team for further review; and

7 of those over 5.000 documents, only 2.895 were selected as falling within

8 Rule 68, and these are the documents that have been disclosed to the

9 Defence. Most of them being disclosed by the 31st of March, 2006.

10 The Prosecution further submits that each disclosure under Rule 68

11 has been accompanied by a detailed list describing the contents of the

12 enclosed material. Further, when potentially exculpatory material has

13 been provided to the Office of the Prosecutor on a confidential basis, the

14 Prosecutor has pursued attempts to obtain the provider's consent to

15 disclosure, as the rules contemplate. The Prosecution, in the Chamber's

16 view, correctly also distinguishes in its submission this case from the

17 ICTR Appeals Judgement in the Karemera case, which was relied on by the

18 Defence, where it was made clear that the Prosecution should not bury

19 relevant material in the middle of large amounts of irrelevant material,

20 but should instead make the relevant material reasonably accessible.

21 Now, Rule 68 imposes an ongoing obligation on the Prosecution to

22 disclose exculpatory material to the Defence. In the jurisprudence, this

23 material has been defined as material which is known to the Prosecution

24 and is favourable to the accused in the sense that it tends to suggest the

25 innocence or mitigate the guilt of the accused or may affect the

Page 253

1 credibility of Prosecution evidence.

2 It is clear from this that the primary obligation lies with the

3 Prosecution. The reality is that a vast amount of material must be

4 reviewed by the Prosecution in any case, and that the rules impose an

5 active obligation on the Prosecution to conduct that review. However, the

6 rules require that material be disclosed that tends to suggest innocence

7 or mitigate guilt, or which calls in question the credibility of

8 Prosecution evidence so that it is inevitable if the Prosecution is

9 conscientiously performing its role, that it will tend to err in favour of

10 disclosure in cases where the issue is not clear whether material is

11 exculpatory or not.

12 The result is that often material that is disclosed may not prove

13 to be exculpatory to the Defence as it pursues its preparation for trial

14 or it may not further the lines of Defence which the Defence has chosen to

15 pursue at the trial. That can be so, even though the material in the eyes

16 of the Prosecution is such that it could be exculpatory.

17 In the present case, it appears to the Chamber that the

18 Prosecution has made an active effort to review the material and has

19 dramatically narrowed the material potentially identified. While the

20 Boskoski Defence seem to disagree with the Prosecution as to whether some

21 of this or much of this material is in truth exculpatory, there is no

22 basis in the material before the Chamber for the Chamber to conclude that

23 the Prosecution is not appropriately fulfilling its obligations under the

24 rule.

25 We would add, of course, that the accused has a right to adequate

Page 254

1 time to prepare his Defence. If it is the case that ongoing disclosure of

2 Rule 68 material provides a genuine hindrance to the accused's preparation

3 of their Defence, it's open to the Defence to raise the issue and, if

4 necessary, to seek more time to enable the Defence to be prepared.

5 For these reasons, this motion is dismissed.

6 We next turn to the Prosecution's fifth motion for leave to add

7 exhibits to its first amended exhibit list, with confidential annexes A to

8 F which was filed on the 9th of March, 2007 and which has been the subject

9 of responses from both Defence teams.

10 The Prosecution seeks to add 14 exhibits to a list. Five of these

11 were obtained during an interview with the forensic physician who is an

12 intended witness, and they deal with details and particulars of the

13 injuries to various witnesses. They were disclosed to the Defence in

14 Macedonian on the 23rd of February this year and in English on the 5th of

15 March, although one document, 993, appears only to have been disclosed in

16 Macedonian.

17 The Boskoski Defence questions the relevance of four of these

18 documents; they being 993, 4, 6, and 7. Two of the documents relate to

19 the exhumation of ten bodies that are alleged to be victims form the

20 Ljuboten village. One of these includes a set of some 293 photographs

21 taken during the exhumation and subsequent autopsies. The other is a

22 letter from the director of a forensic institute responsible for this

23 exhumation, and the autopsies are dealing with those circumstances. They

24 were disclosed to the Defence on the 23rd of February and the 9th of March

25 respectively; and in respect to them, the Boskoski against submits that

Page 255

1 they would be simply redundant and therefore not relevant.

2 Document 1.000 is a report by the public Prosecutor of Macedonia

3 about the events in Ljuboten between the 10th and 14th of August, 2001.

4 Document 1001 is a report from Dr. Jacovski, whom we've mentioned earlier,

5 to the public Prosecutor about attempts he made between the 12th and 15th

6 of August, 2001 to inspect the location where the bodies were found.

7 These two documents were obtained from the Macedonian authorities and were

8 disclosed to the Defence in November 2005 and December 2005 respectively.

9 Again, the Boskoski Defence submits that these are not relevant, and that

10 they may even suggest that the Prosecution is presenting a new conspiracy

11 theory.

12 Three documents, 1002, 3, and 4, are Skopje city hospital records

13 for three patients who are alleged victims of the crimes. They were

14 disclosed on the 23rd of February and the 5th and 9th of March of this

15 year. Once again, it is submitted by the Boskoski that these are

16 irrelevant and redundant. The remaining two documents, 1006 and 7, are

17 records of telephone calls to and from two mobile phones alleged to have

18 belonged to the accused Tarculovski and another intended witness in this

19 case.

20 These were disclosed to the Defence on the 9th of March 2006 in

21 the most part, although a part of document 1007 was not disclosed until

22 the 9th of March, 2007. Both Defences challenge the relevance of these

23 documents and argue there is no evidence that these telephones belonged to

24 these two persons.

25 It is also contended that there's been a failure to comply with

Page 256

1 time deadlines, failure to show good cause, a failure to act with due

2 diligence, that the application is untimely, and that amendments at this

3 stage would cause delays and prejudice.

4 The short statement earlier of the subject matter of the

5 documents, in the Chamber's view, is sufficient to indicate that there is

6 a clear potential relevance to each of the proposed documents, although it

7 is true that in one or two cases the issue will need to be finally

8 determined when and if the documents come to be tendered in light of the

9 precise evidence that is offered in support or in respect of those

10 documents.

11 The documents in many cases have been long disclosed to the

12 Defence, so that in substantial part, at least, they can be expected to

13 have been included in the Defence preparation to this time it. In any

14 event, they have been disclosed in each case before the trial and at a

15 time when it can be expected that there will be no prejudice to the

16 Defence if these documents are added to the Prosecution's exhibit list,

17 especially as in nearly every case the documents relate to witnesses that

18 appear to be down the intended list of Prosecution witnesses.

19 The motion will therefore be granted.

20 The last motion is one for the exclusion of proposed Prosecution

21 exhibits and for protection of the rights of the accused, and it was filed

22 on the 16th of March this year and this has now been a response from the

23 Boskoski Defence and a reply from the Prosecution. The Prosecution

24 submits that a large number of the exhibits including in the Prosecution's

25 Rule 65 ter list are irrelevant, redundant, or so remotely irrelevant that

Page 257

1 the Chamber should exclude them. It submitted that some exhibits have

2 been listed two or three times and some refer to issues not in dispute and

3 that some allege or seek to prove a joint criminal enterprise of a type

4 which goes beyond that pleaded in the indictment, such as to suggest that

5 the Prosecution is intending to broaden the scope of its case.

6 It is it further submitted that the Prosecution has intentionally

7 maintained on its list exhibits which have no relevance so as to cause

8 prejudice to the Defence. It's also complained that some exhibits have

9 not yet been translated or not translated fully, and that many are

10 repetitive or cumulative or that they are merely general background

11 material to the point of irrelevance, redundancy, or simple

12 cumulativeness.

13 The Prosecution responds that the documents are both relevant and

14 probative. It points out that at the request of the Boskoski Defence in

15 February of this year, it had reviewed 637 documents on the list; that is,

16 some 60 per cent of the proposed exhibits, and that as a consequence of

17 that review it had removed 17 of them, and that it had provided the

18 Defence with the table identifying each exhibit, its description, and the

19 relevance that was intended for it. It has also in response to queries

20 from the Boskoski Defence identified relevant parts of some large exhibits

21 to assist the Defence in their consideration of those exhibits.

22 If the Chamber could quickly mention some of the following matters

23 that deal with some of the specific submissions that can be found in the

24 submissions of the Defence. It seems that in the case of document 264 it

25 is in fact the same as document 162, and that document 241 is in fact the

Page 258

1 same as document 252, and that Prosecution therefore seeks leave to remove

2 in each case one of those duplicated documents. Leave is granted;

3 otherwise, it is submitted there is no duplication in the sense that it's

4 been submitted.

5 The Defence made much, it is submitted, of certain documents that

6 could have no relevance that had been in paragraph -- that were set out in

7 paragraph 25 of the motion. They are in fact no longer on the current

8 list, and the Chamber won't deal further with those.

9 The Prosecution accepts that documents relevant to Boskoski's

10 position as Minister of the Interior, a fact which is not in dispute, are

11 also relevant to other issues in the case, such as his effective control

12 over subordinates and over security measures in Macedonia, and therefore

13 are properly in the list for those other purposes.

14 The Chamber also accepts that documents relating to a mine

15 incident, which itself is not in dispute, are relevant to other legal and

16 factual issues in the case. The documents which the Defence were

17 concerned were seeking by stealth, as it were, to extend the scope of the

18 alleged of the joint criminal enterprise, are in fact in the Prosecution's

19 contention, which the Chamber finds persuasive, they are relevant to

20 understand the events at the time, and in this context some of them

21 pre-date and some post-date the actual joint criminal enterprise that is

22 relied on. Further, while some exhibits viewed on their own may be of

23 doubtful, if any, relevance, if they are viewed in conjunction with other

24 exhibits, a relevance becomes apparent, so that the criticisms that some

25 of these exhibits have no possible relevance may not be accepted.

Page 259

1 There is a dispute as to the relevance of documents pertaining to

2 terrorism charges, but these appear to have a relevance to the issue of

3 accused Boskoski's liability under Article 7(3), as they could prove that

4 the only charges concerning people in Ljuboten were against ethnic

5 Albanians, and that these charges allege that they were involved in

6 terrorist activities; that, in turn, being relevant to the question of

7 armed conflict as one looks at all the components of that element.

8 Separately, there is a challenge to exhibits which the Prosecution

9 contends were relevant to the armed conflict issue. In the Chamber's

10 view, each can be seen to have a relevance to different elements of armed

11 conflict in the context of this case, and therefore there is a sufficient

12 relevance to those documents.

13 Some witness statements that are objected to are identified as

14 sources for an expert report upon which the Prosecution proposes to rely

15 and that therefore is sufficient to establish their relevance in this

16 case. It is submitted by the Defence that exhibits pertaining to two

17 military units of the Macedonian army known as the Lions And Tigers have

18 no relevance; and in the view of the Chamber, it is clear on the materials

19 that the nature of the military units active in the vicinity of Ljuboten

20 at the times relevant to the indictment are of relevance in the case, and

21 that the two units mentioned are the subject of differing and disputed

22 evidence, so that that is a live issue in the case.

23 In this respect, while the Chamber notes the Defence objection

24 that it is not pleaded in the indictment that these two units were

25 present, in the Chamber's respectful view, it is not necessary for

Page 260

1 pleading to deal with such matters of particular.

2 There is concern by the Defence that documents which are laws and

3 regulations are not relevant, but these appear to have a potential

4 relevance to the liability or responsibility of the accused Boskoski under

5 Article 7(3) and also in some respects to the existence of an armed

6 conflict.

7 There is objection that the inclusion of the constitution of

8 Macedonian at the time is of no relevance, but the simple answer is that

9 the Prosecution relies on these to demonstrate that the constitutional

10 rights of alleged victims have been violated. There are also a number of

11 documents pertaining to the structure of the army which are, in

12 particular, irrelevant as sources relied upon by the proposed expert

13 witness, Mr. Bezruchenko.

14 We turn to the question of English translations. It is submitted

15 by the Defence that many are missing. The Prosecution identifies that of

16 the 75 documents so identified, only four of them are not in Macedonian,

17 so that the provision of English translations is not a primary need for

18 the Defence preparation, but of course will be important for the practical

19 conduct of the trial.

20 Of those that are originally in Macedonian, six have been

21 translated to English and have been provided, and the relevant portions of

22 16 more have been provided to the Defence. A further nine documents are

23 the subject at the moment of translation, and a further four will be

24 translated as soon as possible. It appears that all the remaining

25 documents in this category are those relied on by the expert -- potential

Page 261

1 expert, Bezruchenko, and there is a motion to be determined by this

2 Chamber whether or not that witness will be permitted to testify, which is

3 a matter of objection by the Defence. Until that motion is determined, it

4 really is premature to be looking at the question of translation of

5 materials which he may use as basic reference material.

6 In summary, the Prosecution submits, except where otherwise

7 indicated, that all these documents are relevant and/or are directly

8 relied upon by witnesses which the Prosecution intends to call.

9 In this context, however, the Prosecution does seek leave to

10 remove one document, 607, as it related to a witness which the Prosecution

11 will no longer call, and that three of these documents, 175, 190, and 615,

12 are in truth, as the Defence identifies, repetitive. Leave is granted to

13 remove those four documents.

14 In this motion, we would repeat, without doing so literally, the

15 general comments we made at the beginning about the difference between the

16 question of the inclusion of a document on the Rule 65 ter list, and the

17 actual admission of that document into evidence during the trial and we

18 would remind counsel that this motion deals only with inclusion into the

19 list, and a number of the matters dealt with in this decision on the basis

20 of the materials presently available to the Chamber may need to be

21 reviewed again in the trial, if and when the Prosecution should actually

22 move for their admission when they will be considered in light of the

23 actual evidence.

24 In the view of the Chamber, it would be in the interests of

25 justice, and is in the interests of justice, that these documents remain

Page 262

1 in the list of the Prosecution so that the Defence is properly on notice

2 of them, and except the extent that we have specifically indicated, the

3 Chamber sees no basis for their current removal and subject to the few

4 identified matters. The motion is therefore dismissed.

5 As a separate matter, the Chamber would make a formal order for

6 CLSS to translate the transcript of today's hearing into Macedonian for

7 the needs of the Defence, as today we don't have actual viva Macedonian

8 translation into place.

9 The Chamber would like to refer to one further motion, which is

10 that of the Boskoski Defence filed on the 2nd of April to stop the

11 Prosecution's continued investigation of this case and its continued

12 disclosure. The Chamber raises it because it clearly -- this is a motion

13 of some urgency, and it raises it to invite the Prosecution to file a

14 response by the 10th of April, unless there is some practical

15 impossibility about that matter. You will realise that if it is filed by

16 the 10th of April, it would give then the Chamber one day before the final

17 pre-trial conference to reach a decision in respect of this motion, so

18 that the pre-trial conference could be conducted in the knowledge of how

19 this motion has been determined.

20 So with that slight plea, I invite, Mr. Saxon, your observations

21 whether it would be really just not fair and practical to ask for a

22 response to the motion by the 10th.

23 MR. SAXON: Your Honour, the Prosecution understands now the

24 urgency of -- that the Chamber receive a motion -- a response from the

25 Prosecution prior to the pre-trial conference. However, with the great

Page 263

1 respect, I would ask the Chamber to consider whether it would give the

2 Prosecution until 1300 hours on the 11th of April to file its response.

3 I'm simply afraid that the quality of our response will not be to

4 a high standard if we attempt to file by 4.00 on the 10th.

5 [Trial Chamber confers]

6 JUDGE PARKER: In the anticipation that my colleagues will

7 volunteer to work through the night to accommodate you, Mr. Saxon, you may

8 have until 1300 hours on the 11th.

9 MR. SAXON: Thank you very much, Your Honours.

10 JUDGE PARKER: May we thank you for coming, and in particular may

11 we acknowledge the burden this procedure has placed on those who have been

12 here translating what we have been saying. The delivery of six decisions,

13 even though in abbreviated form in a form like this, clearly places great

14 demands on people.

15 It's because we have been appointed so near the commencement of

16 the trial and there were no less than 23 motions to be dealt with, there

17 are now 24, some of those have already been dealt with by these decisions

18 and the decisions last Friday, and it is only by means such as this that

19 we can keep up with the time pressures to try and ensure that both parties

20 have a clear understanding of where we are by the commencement of the

21 trial.

22 Thank you all.

23 We now adjourn.

24 --- Whereupon the hearing adjourned at 4.30 p.m.