1 Wednesday, 4 April 2007
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
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
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
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
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.
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
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
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
25 The Prosecution indicates that it requested assistance in respect
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
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
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
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
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
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
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
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.
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
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
25 We would add, of course, that the accused has a right to adequate
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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
22 Thank you all.
23 We now adjourn.
24 --- Whereupon the hearing adjourned at 4.30 p.m.