1 Thursday, 20 September 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 9.07 a.m.

6 JUDGE PARKER: Good morning.

7 My apologies for delaying everybody. I was caught up with another

8 matter.

9 If I could remind you, Mr. Tucker, that the affirmation you made

10 at the beginning of your evidence still applies.

11 THE WITNESS: Yes, Your Honour.

12 JUDGE PARKER: Mr. Mettraux.

13 MR. METTRAUX: Thank you very much, Your Honours.

14 WITNESS: HOWARD TUCKER [Resumed]

15 Cross-examination by Mr. Mettraux: [Continued]

16 Q. Good morning, Mr. Tucker.

17 A. Good morning sir.

18 Q. I would kindly ask to you go back into your binder under tab 19.

19 This is document 1D191. It is an exhibit now, and it is the letter of

20 agreement that was sent by or on behalf of Patrick Lopez-Terres on the

21 20th of February of 2002.

22 MR. METTRAUX: I'll kindly ask the registry to turn to the second

23 page.

24 Q. Mr. Tucker I simply want to go through a number of other

25 conditions which was set by the Office of the Prosecutor to the Macedonian

1 authorities.

2 I will ask you to look at condition number 10. That's on the

3 second page, Mr. Tucker. It says this: "The Republic of Macedonia

4 authorities undertake to ensure the integrity of any mortal and physical

5 evidence gathered to the highest professional standards and to the

6 satisfaction of the OTP representatives."

7 Can you see that?

8 A. Yes, sir, I can.

9 Q. And if you look at the next condition, condition 11, it says

10 that: "The Republic of Macedonia authorities undertake to supply to

11 representatives of the OTP copies of all investigation documents

12 associated with the investigation." Can you see that?

13 A. Yes, sir, I can.

14 Q. Now, at the very end of the letter, Mr. Lopez-Terres says that: "I

15 wish to thank you for your cooperation in moving this issue forward. I am

16 sure you will agree it is in the interest of all parties to address this

17 issue as expeditiously as possible. I hope that this initiative will in

18 some way contribute to the future stability in the region."

19 I'd now ask you to turn to another document in your binder, which

20 is tab 28 [sic], and it is Rule 65 ter 1D51 -- 587, I apologise.

21 Do you agree, Mr. Tucker, that this appears to a letter coming

22 from the public prosecution office of the Republic of Macedonia. It is

23 dated the 25th of February of 2002, so five days after the letter of

24 Mr. Lopez-Terres. It is being sent to the Office of the International

25 Criminal Tribunal for the former Yugoslavia, and it is addressed to Madam

1 Del Ponte. Do you agree?

2 A. Yes, sir, I do.

3 Q. And --

4 MR. METTRAUX: Your Honour.

5 JUDGE PARKER: Mr. Saxon.

6 MR. SAXON: I'm very sorry. Simply, my tab 28 is an investigator

7 note of Mr. Tucker. I'm wondering--

8 MR. METTRAUX: 20 A, Mr. Saxon. "A" like Alan.

9 MR. SAXON: 20 A, I apologise.

10 MR. METTRAUX:

11 Q. And do you agree, Mr. Tucker, that this letter is signed by the

12 public prosecutor of Macedonia, Mr. Dzikov; is that correct?

13 A. That's correct, sir, yes.

14 Q. And if you can look at the text of that letter, you will agree

15 that Mr. Dzikov informed your office, more specifically Madam Del Ponte,

16 that: "We inform you that we are agreeable with the conditions for

17 exhumation and further court and investigative procedures."

18 Is that correct?

19 A. Yes, sir it is.

20 Q. And then he closes his letter with the words: "With all respect

21 and hope for our further mutual cooperation." Is that correct?

22 A. Yes, sir, it is.

23 MR. METTRAUX: Your Honour, the Defence would seek to tender this

24 letter.

25 JUDGE PARKER: It will be received.

1 THE REGISTRAR: As Exhibit 1D200 Your Honours.

2 MR. METTRAUX:

3 Q. Mr. Tucker, you would agree that the conditions which were set by

4 the Office of the Prosecutor for its participation in the exhumation

5 procedure impacted not only on the competencies and mandate of the state

6 prosecutor, but also upon other state organs, including the Macedonian

7 Security Forces. You would agree with?

8 A. That again, sir, I would agree to a point, and I think I should,

9 if you allow me, elaborate a little bit.

10 When discussing conditions set by the Office of the Prosecutor,

11 the conditions referred to the letter of the agreement relate to issues

12 that are sensitive on all sides, both the authorities of Macedonia and for

13 the relatives of the deceased. It was is fact that the relatives of

14 deceased refused to cooperate through mistrust of the authorities of

15 Macedonia. And the Macedonian authorities were unable, without the risk

16 of future conflict, to go into the region in order to conduct their

17 investigation into the -- into the deaths of the -- of those victims and

18 to conduct the exhumation.

19 The role of the Office of the Prosecutor was to try to find a

20 compromise by all parties would be agreeable to this operation moving

21 forward. So the conditions that are mentioned are not the conditions of

22 the Office of the Prosecutor but, rather, the conditions that all parties

23 would agree to, to take this motion forward.

24 Q. And, indeed, we've seen that the conditions were all greed upon by

25 the authorities that I just showed you in this letter?

1 A. Indeed.

2 Q. Mr. Tucker, I will go into a number of issues which you just

3 indicated as to the steps you which took to facilitate that matter, but

4 going back -- a step backward to my previous question. Would you agree

5 that the conditions that had been set by the Office of the Prosecutor as

6 laid down in this letter were relevant not only to the competencies and

7 mandated of Mr. Dzikov as public prosecutor but also impacting on the

8 competencies and mandate of other state authority? Do you agree with

9 that?

10 A. Which other state authorities?

11 Q. I will refer you perhaps to condition number 4, where you set as a

12 condition that there shall no Macedonian special forces, MUP, or military

13 involved in the exhumation process. I suppose that you would agree that

14 this in effect would curtail the usual abilities or mandate of the

15 security forces of the Macedonia republic. Do I agree with that?

16 A. I do. But I would also add that agreement was perhaps one of the

17 most crucial ones, because had the security forces of Macedonian been

18 involved in the operation, it was generally accepted by all parties,

19 including the Macedonian authorities, that that might be a precursor to a

20 future reaction and counteraction by all parties, resulting in violent

21 action.

22 Q. But you must agree with me that Mr. Dzikov, prior to giving his

23 agreement to the conditions set, must have consulted with other

24 authorities considering the fact that the request you had made concerned

25 their mandate as well. Would you agree with that?

1 A. I agree that decisions made it somewhere in the Macedonian

2 authorities to cooperate with the Tribunal, yes, sir.

3 Q. And you are you aware, as well, that the Ministry of Interior did

4 not try to resist the conditions that were set in this letter of yours of

5 the 20th of February. They agreed to all the conditions as well, is that

6 correct, are you aware of that?

7 A. I'm not aware of that, no.

8 Q. Are aware perhaps of a proposal or an offer made by Mr. Boskoski

9 to provide security for the operation exhumation which was turned down?

10 A. Not -- I can't recall that directly myself. It is -- it is

11 possible that took place. I can't affirm or deny it sir.

12 Q. And you've indicated, yesterday, already that you were provided

13 with some assistance or some type of assistance by the Ministry of

14 Interior in the form of support by the crime technique department of the

15 Ministry of Interior; is that correct?

16 A. The Tribunal weren't supplied with it. It was agreed it was a

17 Macedonian operation, and they used the crime scene technicians.

18 Q. And is that correct that the team of crime technicians included

19 the head of this unit, Miroslav Percinkovski?

20 A. That's correct, yes.

21 Q. An individual called Simon Dzidrovski, the head of the

22 identification department. Is that correct?

23 A. Yes, sir, that's correct.

24 Q. A person called Zivko Stanovksi, chief inspector for, what is

25 known as, the development on the field?

1 A. I can't remember that gentleman's name. He may well have been

2 there, yes, sir.

3 Q. And other individuals who were ballistic or identification

4 experts; is that correct?

5 A. That's correct.

6 Your Honours, if I may say, if may help, in my terminology, it

7 would have been the complete scenes of crime package you would expect in

8 any major crime investigation.

9 Q. And could you explain for the benefit of the Trial Chamber what

10 part the crime technicians section of the Minister of Interior played in

11 the exhumation an autopsy process.

12 A. The crime technicians supplied personnel who would be present at

13 both the exhumations and the autopsies, to photograph and record the

14 proceedings, and to retain certain artifacts from the pathologists during

15 the exhumation process such as clothing and that type of material.

16 Q. And did they assist as well with the examination of the clothing

17 of the victims? Is that correct?

18 A. They did, sir, yes.

19 Q. And they prepared sketches in preparation for the exhumation; is

20 that correct?

21 A. They did, yes.

22 Q. And I suppose you were satisfied with the work done by the crime

23 technicians during that operation; is that also correct?

24 A. They were very professional in everything they did, sir.

25 Q. Is that agreeable to you, Mr. Tucker, that all through the year

1 2001 your office, the Office of the Prosecutor, expressed its satisfaction

2 with the competent Macedonian authorities which assisted in the Ljuboten

3 matter. Would you agree with that?

4 A. In 2001? I'm not sure about 2001; but, to my knowledge, yes, for

5 2002.

6 Q. And, in 2002, a number of, let's say, letters of appreciation were

7 sent back and forth between the Prosecution, the Office of the Prosecutor,

8 and the competent Macedonian authority; is that correct?

9 A. I'm not aware of that, but it certainly would not surprise me if

10 that was the case.

11 Q. Well, at this stage, I will ask you to turn to tab 24 of your

12 binder. This is again Exhibit P391, and I will ask you to turn to what is

13 annex B in -- annex C, I apologise, in the filing of the Prosecution.

14 This would be N000-9883-17.

15 A. Yes, sir.

16 Q. Briefly, on this letter, Mr. Tucker, you will agree that this is a

17 letter signed and sent by Madam Del Ponte on the 14th of May of 2002 to

18 Mr. Dzikov, the state prosecutor?

19 A. Yes, sir, that's correct.

20 Q. And simply, if I can ask you it turn to the second page and draw

21 your attention to last negligence of that letter, it says: "In

22 conclusion, I wish to express my appreciation for your assistance in these

23 cases." Do you see that?

24 A. I do, sir, yes.

25 Q. And I also ask you to turn to the next tab in your binder, that's

1 tab 25. This is Rule 65 ter 1D624, and this is a letter of Mr. Patrick

2 Lopez-Terres - we will come back to it - directed to Judge Nikolovski; and

3 if I can ask you to turn to the last page of this document, the second

4 page.

5 Judge Nikolovski is, again, thanked by Mr. Lopez-Terres in those

6 terms: "I take the opportunity of this letter to thank you for your

7 cooperation you have already provided to our office and for the assistance

8 we may request from you in the future."

9 Do you see that?

10 A. Yes, sir, I do.

11 Q. Yesterday, we discussed the fact that you took part in a number of

12 meetings with the Macedonian authorities. We've seen that a number of

13 those meetings related to the Neprosteno investigation, that the meetings

14 in March and April of 2002 related to the Ljuboten investigation, and we

15 have also seen that you had a number of meetings at the end of November of

16 2001 which related to both Neprosteno and Ljuboten. Is that correct?

17 A. Yes, sir, that's correct.

18 Q. Would it be correct to say that you had eight such meetings over

19 three day: The 27th of November, the 28th of November, and the 29th of

20 November. Is that correct?

21 A. I don't remember the numbers. I'm sure you're right.

22 MR. METTRAUX: Simply for the record, this would be tab 27 to tab

23 34. Those are the investigator's notes prepared by Mr. Tucker.

24 Q. And for each of those meetings, Mr. Tucker, I understand that you

25 would prepare an investigator's note which is essentially a summary of the

1 discussions that take place during those meetings; is that correct?

2 A. That's correct, Your Honours, yes.

3 Q. Is that also correct that all of the meetings, and I'm talking of

4 the meetings of the 27, 28, 29 of November, were arranged by your

5 colleague, Mr. Szydlik of the ICTY?

6 A. That's correct, sir, yes.

7 Q. And that is Mr. Szydlik, I suppose in coordination with your

8 office, would decide whom to meet during those meetings; is that correct?

9 A. I'm not sure I understand. Whom to meet during the meetings?

10 Q. Well, who to invite to each particular meeting, the lists of

11 guests.

12 A. No. From my recollection, unless it was specifically with, for

13 example, the Department of Justice, the larger meetings that I attended,

14 if I recall correctly, were called by Mr. Boskoski as the Minister of the

15 Interior.

16 Q. Well, perhaps, I will ask you to look at -- well, I'll ask you a

17 follow-up on that. The meeting you've just mentioned was in relation to

18 the Neprosteno investigation; is that correct?

19 A. That's correct, yes, sir.

20 Q. If you can look at tab 27, for instance, of your binder, that's

21 Exhibit 1D35?

22 A. Yes, sir.

23 Q. And if you look simply at the purpose header of this

24 investigator's note, it says that the meeting were arranged by Mr. Szydlik

25 for the visit of Dennis Milner. Is that correct?

1 A. That's correct, sir. I can see from the participants there, this

2 would be most likely a meeting that we, the Office of the Prosecutor,

3 instigated.

4 Q. And that would be the case of each and every one of the other

5 seven meetings; is that correct?

6 A. Without looking at them and the participants, I would be reluctant

7 to answer "yes" or "no" to that.

8 Q. Well, if you can turn to tab 28, again, meeting arranged by

9 Andrzej Szydlik for the visit of Dennis Milner. It is--

10 A. Yes, sir.

11 Q. Thank you. If you can turn to tab 29, it is, again, meeting

12 arranged by Andrzej Szydlik for the visit of Dennis Milner, 27 November

13 2001.

14 A. Yes, sir.

15 Q. If you can turn to tab 30, meeting arranged by Andrzej Szydlik for

16 the visit of Dennis Milner, 28 November 2001?

17 A. Yes, sir.

18 Q. If you can to tab 31, it is a meeting arranged by Andrzej Szydlik

19 for the visit of Dennis Milner, 28 November 2001?

20 A. Yes, sir.

21 Q. If you can turn to tab 32, it is a meeting arranged by Andrzej

22 Szydlik for the visit of Dennis Milner, 29 November 2001?

23 A. Yes, sir.

24 Q. If you can to tab 33, it is a meeting arranged by Andrzej Szydlik

25 for the visit of Dennis Milner, again, 29 November 2001?

1 A. Yes, sir.

2 Q. Again, tab 34, it's a meeting arranged by Andrzej Szydlik for the

3 visit of Dennis Milner, 29 November 2001.

4 A. Yes, sir.

5 Q. Is that correct that Mr. Boskoski was invited at none of those

6 eight meetings? Is that correct?

7 A. That's correct, yes, sir.

8 Q. Is that also contract that at none of those meeting were members

9 of the security forces invited to attend?

10 A. That's correct, sir.

11 Q. Going back for a moment, Mr. Tucker, to these meetings, in

12 particular one meeting which I will point to you in a second.

13 Is that correct that during one of these meetings, at which you

14 were present, Mr. Milner made it clear that he, as a representative of the

15 Office of the Prosecutor, regarding the Macedonian judicial authorities as

16 competent for the local investigation in Macedonia? Do you recall that?

17 A. I do, yes, sir.

18 Q. And I will draw your attention to this particular meeting. It is

19 under tab 28 of your binder. It is Exhibit 1D195, MFI. This is a

20 document that we have gone through, Mr. Tucker, and I will ask you simply

21 to focus on a paragraph in the middle of the first page, which says this:

22 "Dennis Milner explained that he would speak with the judiciary

23 responsible for the Ljuboten investigation in order to establish what

24 inquiries had been conducted to date and any result that resulted from

25 those inquiries."

1 Can you recall making that record?

2 A. Yes, sir I can.

3 Q. And is it also correct that, during the same set of meetings, it

4 was the view taken by the Office of the Prosecutor that it should not

5 interfere with this judicial investigation? Is that correct?

6 A. That's correct, sir, yes.

7 Q. And I will ask you to turn to the next nab your binder, tab 29,

8 which is MFI, as 1D198. And, again, this is a document that we have seen

9 already, but I will ask you to look at the second paragraph on that page,

10 where Dennis Milner introduced representatives of the ICTY to the public

11 prosecutor.

12 He stated the reason -- the reason for his visit was a follow-up

13 to that of the Prosecutor. He stressed the view of the Prosecutor that

14 Macedonia was a sovereign state and had the responsibility and the

15 capability to investigate crimes of this nature. He stated that it was

16 not within the mandate of the Tribunal to interfere with that judicial

17 processes.

18 Do you recall making that note?

19 A. Yes, sir, I do.

20 Q. And when you sought assurances from the Macedonian authorities

21 that they would investigate the matter of Ljuboten fairly and correctly,

22 you sought those assurances from the judicial authorities; is that

23 correct?

24 A. It is, yes, sir.

25 Q. And, in particular, you sought those assurances from the Ministry

1 of Justice; is that correct?

2 A. That is correct, sir.

3 Q. And, in fact, I am sorry to go back and forth, Mr. Tucker, but if

4 I can ask you to go back to tab 28 of your binder, which is 1D195, MFI.

5 A. Yes, sir.

6 Q. And I'll ask you to look at the third paragraph on the first page,

7 where a statement attributed to Mr. Milner read as follows: "Dennis

8 Milner continued by stating that he will prepare a report for the

9 Prosecutor on his return to The Hague. He was seeking assurances from the

10 Macedonian authorities that with each of the cases, Neprosteno and

11 Ljuboten, the investigations are being treated with the same objectivity."

12 Can you recall making that note?

13 A. Yes, sir, I can.

14 Q. And if you look at the list of participants up on the page, this

15 would be the Minister of the Justice and his assistant; is that correct?

16 A. That's correct, sir, yes.

17 Q. And you would agree, I suppose, that the Chief Prosecutor, as a

18 lawyer of the civilian law tradition, would be quite familiar with the

19 fact that the person in charge of an investigation is the investigative

20 judge. That's correct, isn't it?

21 A. I'm really not in a position to answer for the Prosecutor.

22 Q. Well, if I can you to look at tab 24, please, of your binder,

23 this is, again, the same document.

24 MR. METTRAUX: It is Exhibit P381, Your Honour. This is the

25 Prosecutor's request for deferral of the case -- of the cases, I should

1 say.

2 Q. Mr. Tucker, I'll kindly ask you to turn what is the fourth page of

3 the document, but the third page of the filing.

4 MR. METTRAUX: For the registry's benefit, this would be

5 N000-9883-04.

6 A. Yes, sir.

7 Q. And the Prosecutor said the following: "During a visit to

8 Macedonia on 8 May 2002, the Prosecutor met with the Macedonian

9 authorities and informed them that she had decided to assume primacy over

10 the three investigation about which the Macedonian authorities had

11 provided information, in addition to the two investigations -- in addition

12 about which -- over the three investigation about which the Macedonian

13 authorities had provided information, in addition to the two investigation

14 that she had commenced on 9 November of 2001."

15 And I'll ask you to turn now to tab 19 of this binder.

16 A. Yes, sir.

17 Q. This would be 1D191. This is, again, the letter of agreement,

18 Mr. Tucker; and if I can ask you to look at paragraph or point 1,

19 condition 1 of letter, where Mr. Lopez-Terres says: "The authorities of

20 the Republic of Macedonia agreed to undertake an exhumation of ten marked

21 and identified graves situated in a graveyard at Ljuboten and acknowledge

22 that the full judicial investigation in relation to the cause of death of

23 the human remains interred at this location has commenced."

24 You will agree that what Mr. Lopez-Terres was referring to was, in

25 fact, a judicial investigation; is that correct?

1 A. That's correct, sir, yes.

2 Q. And the understanding of the Prosecution at the time of Madam Del

3 Ponte's exercising what she believed to be the primacy that she could

4 trigger was that the judicial authority was in charge of the

5 investigation. Is that correct?

6 A. Forgive me, I'm not sure I understand the question.

7 Q. Well, are you aware of the fact that at the time, when Madam Del

8 Ponte decided to exercise the primacy of the Tribunal on the 8th of May

9 2002, the understanding of your office was that a judicial authority was

10 in charge and competent for the investigation of Ljuboten. Do you agree

11 with that?

12 A. At the time of the -- that Madam Prosecutor exercised her primacy?

13 Q. That's correct.

14 A. Yes, sir.

15 Q. And if we could look at tab 25 of your binder, please, Mr. Tucker,

16 that's Rule 65 ter 1D624. Can you agree that this is a letter signed by

17 Patrick Lopez-Terres, chief of investigations; that it is sent to Judge

18 Nikolovski; and that is dated 22nd of May of 2002? Is that correct?

19 A. That's correct, sir, yes.

20 Q. And do you recall that Mr. Nikolovski at the time was the

21 investigative judge in charge of the Ljuboten investigation. Is that

22 correct?

23 A. Yes, sir, I do remember that.

24 Q. I'd like to go through this letter with you. It says this: "Dear

25 Judge Nikolovski, I refer to the visit of the Prosecutor of the

1 International Criminal Tribunal for the former Yugoslavia, ICTY, to the

2 Republic of Macedonia on the 8th of May 2002. During this visit, the

3 Prosecutor of the Tribunal, Madam Del Ponte, met, amongst others, Prime

4 Minister Ljupco Georgievski; the foreign minister, Mr. Casule; and the

5 public prosecutor, Mr. Dzikov."

6 Can you see that?

7 A. Yes, sir, I can.

8 Q. And Mr. Lopez-Terres continues: "She informed the authorities of

9 the Republic of Macedonia that she had decided to exercise its primacy,

10 pursuant to Article 9 of the Statute of the Tribunal, over the national

11 courts of the Republic of Macedonia in relation to five cases currently

12 under investigation in your country." And there you would agree that two

13 of those five case, Mr. Tucker, were Ljuboten and Neprosteno; is that

14 correct?

15 A. That's correct, sir, yes.

16 Q. And will Lopez-Terres continues: "One of these case is the

17 Ljuboten investigation which was assigned to you till now. The Prosecutor

18 of the ICTY has confirmed in writing the decision, a copy of which was

19 sent to public prosecutor Mr. Dzikov, dated 14 May 2002. In view of the

20 decision of Madam Del Ponte to exercise the primacy of the Tribunal in

21 this matter, it is anticipated that all further investigations into these

22 five matters will seize; however, that will not include current inquiries

23 that are in progress in relation to this investigation, for instance, in

24 respect of the Ljuboten investigation, the forensic analysis, and

25 subsequent reports, the autopsy reports on the identity of the deceased

1 and the cause of death," et cetera.

2 Were you aware of that particular letter, Mr. Tucker?

3 A. Yes, I was, sir.

4 MR. METTRAUX: Your Honour, I would seek to tender this letter.

5 JUDGE PARKER: It will be received.

6 THE REGISTRAR: As Exhibit 1D201, Your Honours.

7 MR. METTRAUX:

8 Q. Is it correct, Mr. Tucker, that, in the course of your

9 investigation, or in the course of your meetings with the Macedonian

10 authorities in 2001 and 2002, you also had the opportunity to meet with

11 representatives of the OSCE? Is that correct?

12 A. That's correct, sir, yes.

13 Q. And, in the course of those meetings, the OSCE also made it clear

14 to you that their understanding of what was going on in the country,

15 Macedonia, was that the judicial authorities were in charge of the

16 Ljuboten investigation. Is that correct?

17 A. I don't remember that specifically, but that is quite likely to

18 have been the case, yes.

19 Q. And can you recall, perhaps, that they pointed out to you the

20 difficulties which the Macedonian authorities had in investigating this

21 and other similar cases? Can you recall that?

22 A. Yes, sir, I can.

23 Q. Can you also recall that, during one of those meetings, the OSCE

24 made it clear to you that they believed you, the Office of the Prosecutor,

25 should provide assistance to the competent judicial authorities. Do you

1 recall that?

2 A. Yes I can. I can't remember exactly in that context, but I recall

3 the general conversation, yes, sir.

4 Q. If I can ask to you turn to tab 27 of your binder, Mr. Tucker,

5 this is, again, an investigator's note. It's already an exhibit as 1D35.

6 If we briefly go through it, Mr. Tucker, this is, again, the same

7 type of meeting. The date is 27 November 2001. The time is 9.45. Office

8 of the OSCE, and there is a number of representative of the OSCE:

9 Yourself, Mr. Milner, and Mr. Szydlik. Do you agree?

10 A. Yes, sir, I do. That is correct.

11 Q. And the meeting, as you can see from the second paragraph in the

12 text, had to do with both Neprosteno and Ljuboten. Is that correct?

13 A. Yes, sir, that's correct.

14 Q. At this stage, I will simply ask you to turn to the last page of

15 this document and focus, please, on a paragraph which starts with the

16 words "SM," which would be Sandra Mitchell, senior member of the OSCE.

17 She said: "Sandra Mitchell, again, stated the importance, in her

18 view, of ICTY involvement in the judicial process. She suggested the

19 possibility of the ICTY providing guidance and/or advice to the Macedonian

20 judicial authorities, on the review, preparation, and subsequent

21 prosecution of suspects within the jurisdiction of the authorities."

22 Can you see that?

23 A. Yes, sir, I can.

24 Q. And in response to that, Mr. Milner said that: "He preferred to

25 think of an open cooperation between the Macedonian judiciary and the ICTY

1 lawyers." Can you see that?

2 A. Yes, sir, I can.

3 Q. And the OSCE made no mention or no suggestion to the effect that

4 you should provide assistance or guidance or advice to anyone other than

5 the Macedonian judicial authorities. Is that correct?

6 A. Not according to this report, no, sir.

7 Q. Are you also aware of the fact, Mr. Tucker, that the European

8 Committee for the Prevention of Torture and Inhumane Treatment took an

9 interest in the Ljuboten incident, in particular as regard allegations of

10 police mistreatment in police stations? Are you aware of that?

11 A. Not the specifics of the organisation, but I know there was a lot

12 of international interest in this particular topic.

13 Q. Are you aware of the fact that like the OSCE had done, as we have

14 just seen, the European Committee Against Torture took the view that the

15 authorities which were competent in Macedonia to investigation allegations

16 of police brutalities in police stations were again the judicial

17 authorities? Were you aware of that?

18 A. Not specifically, no, sir.

19 Q. Perhaps, I will kindly ask you to turn to tab 35 of your binder.

20 This has been MFI'd as P380. This is a report to the government of the

21 former Yugoslav Republic of Macedonia dated 16 January 2003. And I will

22 ask to you turn to the third page of that document, Mr. Tucker. This is

23 the part of the report which relates to the Ljuboten incident. The actual

24 report is larger in size.

25 MR. METTRAUX: I will ask the registry to turn to ERN N001-4771,

1 please.

2 Q. If you can look at what numbered paragraph 27, I will read the

3 first two sentences to you. It says that: "The CPT delegation examined a

4 series of cases of alleged ill-treatment emerging in the aftermath of an

5 operation by government security forces in the village of Ljuboten near

6 Skopje on 10 to 12 August 2001. The delegation focussed its attention on

7 the treatment of those persons who had been deprived of their liberty by

8 the police in the course or after the Ljuboten operation."

9 So you would agree that this appears to be the allegations of

10 police brutalities which followed the operation during the weekend of the

11 10 to 12th August 2001? Is that correct?

12 A. Yes, sir, that is correct.

13 Q. And if I can ask you to turn to the next page, please, I will ask

14 to you look at the second paragraph within --

15 THE INTERPRETER: Interpreters kindly ask the counsel to speak a

16 little bit slower.

17 MR. METTRAUX: I apologise, yet again.

18 Q. If I can ask you to look at the second paragraph of paragraph 28,

19 the Committee makes the following comment: "In this connection, it should

20 be noticed that the response by the Ministry of Justice to the delegations

21 immediate observations under Article 8, paragraph 5 for the Convention

22 relayed the following statement from Basic Court II. The Court underlines

23 that there has been no decision in respect of instituting court procedure

24 against maltreatment by the law enforcement organs.

25 "Given that the information set out in the preceding subparagraph

1 can be said to amount to prima facie, evidence that that ill-treatment may

2 have occurred, the CPT would like to be informed of the reasons for the

3 absence of the decision to institute the court procedure against

4 maltreatment, as well as to receive the views of the relevant public

5 prosecutor on this matter."

6 And if you can now turn to the second paragraph of paragraph 29,

7 it says this: "For its part, the Ministry of Justice has also informed

8 the CPT by the letter of 14 February 2002 that it is in the process of

9 establishing an independent expert body to examine the allegations for

10 possible cases of torture after the events in Ljuboten and to prepare a

11 report, a copy of which is it to be submitted to the CPT. The CPT

12 welcomes this undertaking and looks forward to receiving a copy of that

13 report in the near future."

14 At this point, Mr. Tucker, would you agree that the CPT took the

15 view that the relevant public prosecutor, as they call it, and the

16 Ministry of Justice were responsible for this matter, and that the

17 Ministry of Justice responded that it would act upon the request made by

18 the CPT? Do you agree?

19 A. Yes, sir, I do.

20 Q. And if I can ask you to turn to what is numbered as page 23 of

21 this report, this is N001-4775, and that would be the last paragraph

22 before point 5. It says that: "By letter of 27 November 2001, addressed

23 to the Minister of Foreign Affairs, the president of the CPT recalled the

24 delegations request for certain information relating to the -- with the

25 Atulla Qaili's case, including inter alia an account of any judicial

1 action taken to investigate the manner in which he was treated by the law

2 enforcement agencies, details of any decision concerning the initiation of

3 court proceedings related to ill-treatment by the law enforcement agencies

4 and the information on which a decision to proceed or not to proceed was

5 based."

6 And, again, you will agree that the CPT had taken the view that

7 the matter pertaining to the AQ case was a judicial matter.

8 Is that correct?

9 A. That's correct, sir.

10 THE INTERPRETER: The court reporter has requested the counsel to

11 speak slower please.

12 MR. METTRAUX: We have just become aware of that fact, and we are

13 giving them a breathing space.

14 Q. Mr. Tucker, is it correct that, when you met with the judicial

15 authorities in -- at the end of November of 2001, they told you, in no

16 uncertain terms, that they were competent to investigate the matter of

17 Ljuboten and never suggested that you should go and talk to someone else

18 about this matter? Is it correct.

19 A. I don't recall that, no, sir.

20 Q. Well, perhaps, we'll look at the material then -- we'll look

21 first, perhaps, at the Neprosteno matter, if we may. And for the

22 assistance of the Chamber, perhaps, could you explain in a short summary

23 what the Neprosteno case is all about?

24 A. Your Honours, this particular case involved the disappearance, the

25 alleged abduction, of a number of Macedonian civilians by the organisation

1 known as the NLA, where it was believed that they had been, once abducted,

2 subject to torture and subsequent murder, and the bodies buried in

3 undisclosed locations in the area of Neprosteno.

4 MR. METTRAUX: Your Honour, for the record, there is a more

5 complete information concerning the Neprosteno incident in the document

6 which is under tab 8 of your binder.

7 Q. Mr. Tucker, I'd kindly ask you to turn to tab 30, 3-0, of your

8 binder, please. This would be Rule 65 ter 1D657. It has an ERN

9 1D00-5880.

10 If we can go through this document together, Mr. Tucker, this is

11 one of the meetings we have seen arranged by your colleague, Mr. Szydlik,

12 for the visit of Mr. Milner. The date is 28 November 2001. The time is

13 9.40 in the morning. The location is the Institute for Forensic Science

14 in Skopje, and there is a long list of people present at this meeting,

15 including Ms. Aleksandra Zajirovska, Mr. Milner, Mr. Szydlik, yourself,

16 and your interpreter. Is that correct?

17 A. That's correct, sir, yes.

18 Q. Can you recall that, during these meeting, Ms. Zajirovska, who at

19 the time was an investigative judge for the Tetovo regional court, was

20 introduced to you as the person in charge of the Neprosteno

21 investigation? Do you recall that?

22 A. I do, sir, yes.

23 Q. And if you can turn to the second page of that document, please,

24 that would be 1D00-5881. I'd like to draw your attention to the third

25 paragraph on that page. It reads as follows: "Mr. Arifi, president of

1 the Tetovo regional court, introduced himself and explained the procedure

2 of the regional court system in Macedonia. He explained that he had

3 appointed Madam Aleksandra Zajirovska as the investigating judge for the

4 investigation, and Mr. Boris Mirosavlevski as the public prosecutor.

5 "Madam Zajirovska was in charge of the investigation, reporting

6 through the public prosecutor to himself. He stated that the evidence

7 would be correlated by the investigative judge for the judicial court and

8 possibly for the ICTY and will be assessed based on its merits. The

9 evidence, as he understood the situation, would also be reviewed by the

10 Tribunal."

11 Does that correctly reflect what was told to you at the time by

12 Mr. Arifi, as far as you can recall?

13 A. Is it does, sir, yes.

14 Q. Moving on now to the Ljuboten investigation. Is that correct that

15 Prosecutor Serafimovski, Deputy Prosecutor Dragan Cakic, and Investigative

16 Judge Dragan Nikolovski were introduced to you as the organ or persons

17 competent to investigate crimes in or around Ljuboten? Do you recall

18 that?

19 A. No. I think my recollection was that they were only competent for

20 the area of Neprosteno.

21 Q. Well, perhaps, I will ask you to turn to tab 31 of your binder.

22 MR. METTRAUX: Your Honour, there is MFI'd as 1D197.

23 Q. This is, again, a meeting organised by your office on the 28

24 November 2001. The time is 1320. It took place at the office of the

25 higher public prosecutor in Skopje, and among those present were Gregor

1 [sic] Serafimovski, who was acting higher public prosecutor; Mr. Dragoljub

2 Cakic, deputy primary public prosecutor; Mr. Dragan Nikolovski,

3 investigative judge at the primary court Skopje II; Jani Nica, criminal

4 judge; Ljubomir Joleski, criminal judge; Maja Konevska, deputy public

5 prosecutor; Mr. Milner; Szydlik; yourself; and your interpreter,

6 Ms. Brajovic. Is that correct?

7 A. That's correct. I apologise. I misunderstood the previous

8 question. These are the individuals who were responsible for the

9 [indiscernible].

10 Q. I am grateful. It might have to do with my question. I'd kindly

11 ask to you look at the second paragraph on this page, which starts with

12 the words "Mr. Serafimovski": "Mr. Serafimovski, acting higher public

13 prosecutor, welcomed the ICTY to the meeting and thanked them for

14 attending. He identified the other members of department to Dennis

15 Milner."

16 Can you see that?

17 A. Yes, sir, I can.

18 Q. Then there's a paragraph that pertains to Neprosteno, and then it

19 says: "He spoke of the difficulties involved in both investigations, and

20 the danger to those investigating the issues and those supplying the

21 information. He also referred to the media release of information that

22 also added to the difficulties and an increase in tension within the

23 communities affected by the exhumation. He also referred to previous

24 attacks by NLA members."

25 Can you see that?

1 A. Yes, sir, I can.

2 Q. If I can ask you to turn to the next page, that would be

3 1D00-5531. Mr. Serafimovski continues: "Mr. Serafimovski then spoke

4 about Ljuboten and the practical difficulties that faced the investigation

5 team, security problems, and an inability to visit the scene of the

6 killings as well as the grave sites. He also spoke of the official

7 version of the events of the day of the incident.

8 "He said that five members of the KLA had been killed at the scene

9 and were laying in the field where they fell; however, on site

10 investigation was impossible due to security considerations. They

11 received information that the deceased were buried the following day. He

12 explained the judicial process and the appointment of an investigative

13 judge to take charge of the investigation."

14 Can you see that?

15 A. Yes, sir, I can.

16 Q. Then if you can go a little bit further in the document, there is

17 a passage which refers to a Mr. Sokic, which should we believe be

18 "Mr. Cakic," deputy primary public prosecutor, explained his roll to you.

19 He said: "He stated that the investigation in to Ljuboten had already

20 been opened despite the lack of information necessary to do so. They had

21 been waiting for the information from the Ministry of Interior for

22 sometime. However, he did say that he had been in contact with Professor

23 Duma at the Institute of Forensic Science Skopje."

24 Can you see that?

25 A. Yes, sir, I can.

1 Q. And then Mr. Cakic -- you record them as saying: "They had not

2 been able to visit the scene of the killings to conduct an on-site

3 investigation or visit the site of the graves of the victims. No

4 interviews had been conducted with the relatives of the victims or any

5 other investigation with other potential witnesses (security concerns).

6 He emphasised that he and his colleagues were willing to commence the

7 investigation as soon as the situation permits, but he was not prepared to

8 go to the area until the security issues had been resolved. Mr. Cakic

9 explained that he had already experience of being 'blown up' during such

10 an exercise and considered himself fortunate to have survived."

11 And I think, Mr. Tucker, you have already indicated that those

12 security concerns were expressed by the relevant Macedonian authorities

13 whom you met; is that correct?

14 A. Yes, sir, that's correct.

15 Q. And in the next paragraph, Mr. Milner says this: "Dennis Milner

16 reassured all present that it was not the intention of the ICTY to

17 commence until the security concerns had been addressed. He then

18 explained the role of the ICTY in the investigations and the sovereign

19 right and duty of Macedonia to investigate all matters of this nature that

20 are presented to them.

21 "He also assured those present that the Prosecutor, ICTY, had no

22 intention to put pressure or to attempt to influence Macedonia in their

23 investigation."

24 Then Mr. Serafimovski says that: "Mr. Serafimovski stated that

25 the involvement of the ICTY was critical to the investigations in order to

1 dispel false rumours in the media and from other sources."

2 Can you recall Mr. Serafimovski making that point?

3 A. Yes, sir, I can.

4 Q. And when you met with Mr. Serafimovski, on this occasion but also

5 perhaps on other occasions, he made it clear and evident to you that he

6 considered himself and the other judicial authorities as competent to

7 investigate Ljuboten; is that correct?

8 A. Yes. And my recollections are connect now. It was dependent, of

9 course, on the security situation.

10 Q. And he never suggested to that you should go and talk to someone

11 else in relation to this investigation; is that correct? He was the man

12 in charge.

13 A. That's correct, yes, sir.

14 Q. I would like to ask you about another matter, if you can recall it

15 or if you have any knowledge of it.

16 Can you recall during any of your meetings with the Macedonian

17 authorities that they explained to until that time, when the Office of the

18 Prosecutor had made a formal request for deferral of the case to its

19 jurisdiction, they were required to continue with their investigation? Do

20 you recall the judicial authorities telling you that?

21 A. Not precisely in those terms. I can't remember the exact details

22 no, sir.

23 Q. Well, perhaps, I will ask you, again, to look at tab 24 of your

24 binder. This is, again, Exhibit P391, and I'll ask to turn, again, to

25 annex H of this document. This would be N000-9883-38.

1 Mr. Tucker, this is letter which we have already seen very briefly

2 in relation to other particular point, and we will come back to it. But

3 at this stage, I will simply ask you to identify the letter.

4 Again, this is a letter of the public prosecutor office of

5 Macedonia. It is dated the 2nd of September of 2002, and it is sent to

6 Madam Del Ponte, Chief Prosecutor of the ICTY, OTP. Is that correct?

7 A. That's correct, and annex H that you have referred to me is

8 actually dated the 2nd of September.

9 Q. 2002?

10 A. 2002.

11 Q. Thank you. If I can ask you to turn to the second page of that

12 document, in the fourth full paragraph of this page, Mr. Dzikov says the

13 following, it is the middle of the paragraph: "The public prosecutor's

14 office and the courts are legally obliged to continue with the

15 investigative and criminal proceedings before the competent domestic

16 Courts because it is a case of person being prosecuted as responsible for

17 serious violations of the international human right law to whom the Law on

18 Amnesty cannot be applied, nor do [sic] this crime expire."

19 So you will agree that Mr. Dzikov, in any case, took the view that

20 the judicial authorities had an obligation to continue until the time when

21 the primacy of the Tribunal was triggered. Is that correct?

22 A. That's correct, sir.

23 Q. And if you look at the first sentence of the next paragraph, you

24 will agree that, again, the Prosecutor took the view that the

25 investigation into those five cases, which were the subject of deferral

1 discussions, were within the competence of the public prosecutor and the

2 court. Is that correct?

3 A. Yes, sir, that's correct.

4 Q. Are you aware of the fact that this is a view that the state

5 prosecutor or the public prosecutor of the Republic of Macedonia, again,

6 reiterated during the deferral hearing in this matter before this

7 Tribunal? Are you aware of that?

8 A. I'm not sir. I wasn't party to those proceedings.

9 Q. I'd kindly ask you to turn to tab 26 of your binder. This is Rule

10 65 ter 1D638.

11 MR. METTRAUX: And if the registry could turn to what is the end

12 of page 14 of the transcript, please. That would be the previous page,

13 I'm sorry.

14 Q. If you could look at the last sentence, starting before the

15 indication page 14, please, Mr. Tucker, I will read it for you. It says

16 this: "The public prosecutor of the Republic of Macedonia, senior public

17 prosecutor, and the basic public prosecutors, in accordance with their

18 constitutional function of criminal prosecution of perpetrators of

19 criminal acts, among which are the evil doing acts of severe criminal

20 offences of violations of the international humanitarian law on the

21 territory of the Republic of Macedonia, and according also to the

22 international rules and regulations, undertook activities for collection

23 of evidence against the organisers, leaders, conspirers, and other

24 perpetrators."

25 And then there is a sentence which says: "Before the competent

1 Macedonia courts, ongoing are the procedures.

2 So you will agree, Mr. Tucker, that, again, Mr. Dzikov -- those

3 terms of those of Mr. Dzikov indicated that they, the judicial authority

4 and himself in particular, were in charge of this ongoing procedure, is

5 that correct, as far as the Macedonian authorities are concerned, in any

6 case?

7 A. That's correct, sir, yes.

8 Q. And if I can ask you to turn a little bit further, at page 18 of

9 the transcript, please, were you aware of the fact that Mr. Dzikov at the

10 time had indicated that, unless the Office of the Prosecutor would seize

11 itself of the matter, the Macedonian authorities would then be required

12 to, let's say, reactivate their investigation? Are you aware of that?

13 A. I was aware of that, yes.

14 Q. And, perhaps, I'll ask you to look at the record of the hearing

15 again.

16 MR. METTRAUX: And if the registry could scroll down -- a little

17 bit further down the page. Thank you.

18 Q. And I will draw your attention to the sentence which starts with

19 the words: "But in case."

20 Can you locate it. It is towards the end of the page.

21 A. Has it got a line number, sir.

22 Q. It would be line 12?

23 A. Thank you. Yes, I have that.

24 Q. And, again, this is, as you can see from further up in the page,

25 submissions made by Mr. Dzikov, the state prosecutor. He says that: "But

1 in case that the Prosecution within The Hague Tribunal or The Hague

2 Tribunal decide not to defer the five cases, then, according to Article 9,

3 paragraph 1 from the Statute of the Tribunal, Macedonian judicial

4 institutions, the public prosecutor, and the courts have the legal

5 opportunity and obligation to continue further the very investigative

6 procedures and the criminal procedures before the competent national

7 court," and then if you turn, "because it is criminal prosecution of

8 perpetrators responsible for severe invitations of the international

9 humanitarian law, perpetrators to which the Law on Amnesty cannot be

10 applied, and the crimes themselves are not subject to exceeding statute of

11 limitation."

12 So does that correspond to your memory of the information which

13 were given to you by the Macedonian authorities which you met?

14 A. Yes. I don't remember who gave me the information, but I can

15 certainly remember the content, sir.

16 MR. METTRAUX: And for the record, Your Honour, I will also draw

17 the Chamber's attention to paragraph 43 of decision on deferral of the

18 Trial Chamber of 4 October 2002. This is in tab 37 of your binder.

19 Q. And as was seen from various passages that I have read to you in

20 the last half-hour or so, you would agreed that the Macedonian authorities

21 investigation was ongoing at the time? Is that correct?

22 A. Yes, sir, that's correct.

23 Q. And you knew that an investigation had been open, that a judge and

24 prosecutor were in charge of the matter at that time. Is that correct?

25 A. Yes, sir, it is.

1 Q. Are you also aware that at some point in the late summer and early

2 Autumn of 2001, after the events of Ljuboten, a number of meetings had

3 been organised between members of the Ministry of Interior and members of

4 the Forensic Institute? Were you aware of that fact?

5 A. This is before my arrival in November, sir?

6 Q. That's correct.

7 A. No, I wasn't.

8 MR. METTRAUX: Your Honour, I will simply refer to the evidence of

9 Dr. Jakovski on those point of view of the response of this witness.

10 Q. And simply to clarify, Mr. Tucker, I don't want to redo the point

11 too much, but you were aware, up until at least the 25th of September of

12 2002, and that's the time of the deferral hearing, that, until that point,

13 the Macedonian authorities -- the competent Macedonian authorities had

14 been conducted an investigation and that investigation was ongoing? Is

15 that correct?

16 A. That is my understanding, yes, sir.

17 Q. Are you also aware that one of the reasons why the Office of the

18 Prosecutor of this Tribunal requested the matter to be deferred to your

19 competencies or the competencies of the Office of the Prosecutor was a

20 risk of collusion, to use the term, between the two parallel

21 investigations, yours and the investigation conducted by the Macedonian

22 authorities? Are you aware of that?

23 A. I'm not aware of what -- what decision was taken by the Prosecutor

24 as to why she would exercise primacy at that time.

25 Q. Well, perhaps, I'll just ask you, in that case, to go back, once

1 again, to tab 24 of this binder. This is, again, the Prosecution request

2 for deferral. It is Exhibit P391.

3 Mr. Tucker, I'll ask you to turn to paragraph 13, 1-3, of this

4 Prosecution filing, and the submissions that were made by the Prosecution

5 in this filing read as follows: "There is no doubt that the ongoing

6 Macedonian investigations and Prosecution into crimes allegedly committed

7 by NLA members in 2001 are closely related to the Prosecutor's

8 investigations of the same acts. Similarly any investigations and

9 Prosecution concerning the activities of the Macedonian forces against

10 Macedonian Albanian civilians in Macedonia during 2001, including the

11 alleged crimes committed in Ljuboten, are also closely related to the

12 Prosecutor's investigations of the same acts."

13 Can you see that?

14 A. Yes, sir, I can.

15 Q. And in the next paragraph, paragraph 14, the Prosecution or the

16 Office of the Prosecutor said this: "Parallel investigations of the same

17 criminal acts by the Prosecutor and the Macedonian authorities will likely

18 jeopardise the Prosecutor's ability to resolve her investigation in a

19 successful manner. The Macedonian authorities will inevitably interview

20 witnesses that the Prosecutor seeks to interview.

21 "Multiple interviews of witnesses by different authorities risks

22 to produce conflicting statements, confused lines of inquiry, and

23 antagonise witnesses. In addition, the Macedonian authorities will likely

24 seek to seize and analyse physical and forensic evidence which would

25 compromise the Prosecutor's ability to analyse the same evidence.

1 "Finally, to the extent that the Macedonian authorities rely on

2 investigative procedure, techniques, and strategies that are different

3 from those relied upon by the Prosecutor, their acts could compromise or

4 taint subsequent investigative efforts by the Prosecutor.

5 "In short, the Prosecutor submits that the continued

6 investigations and prosecutions by the Macedonian authorities into the

7 same acts being investigated by the Prosecution will have serious

8 implementations for the Prosecutor's investigations."

9 So would you agree that at least one of the reason advanced by the

10 Prosecution, your office, the Office of the Prosecutor, for the deferral

11 of cases was the risk of collusion between the two investigations? Do you

12 agree?

13 A. I do, yes.

14 MR. METTRAUX: And, Your Honour, this particular argument of the

15 Prosecution was taken into conversation by the Trial Chamber; again, its

16 decision and deferral at paragraph 11, which summarized the submissions of

17 the Prosecutor, and paragraph 12 as well.

18 Q. Mr. Tucker, are you aware that, once the Trial Chamber of this

19 Tribunal had rendered its decision on the deferral of these five cases to

20 the jurisdiction of this Tribunal, the Macedonian authorities then

21 proceeded with the actual transfer of those cases? Are you aware of that?

22 A. Yes, sir, I am.

23 Q. And you will agree, I hope, that the authorities which deferred to

24 the jurisdiction of the Tribunal were neither the Ministry of Interior or

25 even the government of Macedonia, but the courts competent with these

1 matters. Is that correct?

2 A. Yes, sir, that's correct.

3 Q. And those would be the basic local courts; is that correct?

4 A. That's my understanding, yes, sir.

5 Q. And if I can ask you to turn to tab 38A of your binder, please?

6 A. I'm sorry which tab, sir?

7 Q. It would be, well, tab 38, perhaps?

8 A. 38.

9 Q. Yes. This would be Rule 65 ter 1D664. It is ERN 1D00-5908; and

10 in the Macedonian version, it would be 1D00-5904.

11 MR. METTRAUX: Your Honours, this is an unofficial translation of

12 the document. If admitted, we would submit it to the CLSS for an official

13 translation.

14 Q. Mr. Tucker, if you can look first at the top left-hand corner of

15 that document, you will see that it comes from the Supreme Court of the

16 Republic of Macedonia, and the date of this document called "Conclusions"

17 is 6 November 2002. Is that correct?

18 A. That's correct, sir, yes.

19 Q. And if you can look immediately at the second paragraph of that

20 document, and more specifically at the sentence, which is the sixth line

21 from the bottom, it starts with the word: "At the question of counsel."

22 Can you see that?

23 A. Yes, sir, I can.

24 Q. And the Supreme Court of Macedonia said the following: "At the

25 question of the counsel, the state public prosecutor also confirmed that

1 Republic of Macedonia will not object to the taking over of the two

2 investigations considered; namely, the investigations Neprosteno and

3 Ljuboten. With regard to these investigations, the alleged perpetrator

4 were still unknown. To support his suggestions, he claimed that there

5 still exists reasonable fear that the security situation in Macedonia and

6 the place that was established recently could be interrupted if this case

7 are to be hand by domestic courts."

8 Can you see that?

9 A. Yes, sir.

10 Q. And then, to save time, we will you go through the document and to

11 the third paragraph in paragraph number 4 in this document, where it says:

12 "Therefore, it is the obligation."

13 Can you see that?

14 A. I can, sir, yes.

15 Q. The decision reads: "Therefore, it is the obligation of the basic

16 courts that acted on the mentioned cases to respect the formal request of

17 the International Court according to the deadline determined in Article 11

18 of the Rules of Procedure and Evidence of the International Court.

19 And then at paragraph 5, the Supreme Court says: "The basic

20 courts, depending on what phase the procedures are in, investigation,

21 indictment, main trial, possible judgement, will do the transfer pursuant

22 to the established authorities -- authority by the Law on Criminal

23 Procedure."

24 So, Mr. Tucker, does that record with your own memory of the

25 competence of the authorities which had to defer the case back to you or

1 to you?

2 A. It does, sir, yes.

3 Q. You indicated already that you met with our client, Mr. Boskoski,

4 on a number of occasions. Can you recall from any of those particular

5 meeting where Mr. Boskoski made it clear to you that his own understanding

6 of the situation was that it was the judicial authorities, in particular

7 the prosecutor, who was in charge of the investigation at Ljuboten? Do

8 you recall that?

9 A. I don't, sir, no.

10 Q. Well, Mr. Tucker, I would kindly ask you to look at a short

11 video-clip. This was a video that was provided to us by the Office of the

12 Prosecutor.

13 MR. METTRAUX: The transcript is under tab 39 of your binder, Your

14 Honour, and this is Rule 65 ter 1D684.

15 [Videotape played]

16 THE INTERPRETER: [Voiceover] "Armed groups are blocking the

17 peaceful integration process. This is one thing that I'm sure of, that

18 the Macedonian security forces have the strength, the preparedness to

19 return the constitutional order. At this moment, all the arguments have

20 been exhausted. All of the arguments are in the side of the Republic of

21 Macedonia, and all of the arguments are in our hands. Europe and the

22 international community significantly changes their position about the

23 Republic of Macedonia, and I think that we have a great advantage. I

24 think we are ready that we change every problem according to the

25 constitutional set up of Macedonia.

1 "According to the case of Ljuboten. Minister Boskoski responded:

2 'There are no dilemmas about that question. We, the Macedonian police,

3 were the first ones who asked for investigation to be carried out on the

4 location. And if you bring back your memory, you will remember that well

5 that we did not conduct this investigation because the armed groups on the

6 village of Ljuboten did not allow the investigative judge, the

7 criminalistic police and the three independent institutions to enter the

8 village and verify the factual situation the same day that killings were

9 reported which could have resolved that matter.'"

10 "Boskoski, when asked if MVR had sent a list of individuals who

11 had committed war crimes to The Hague Tribunal: 'We respect the

12 International Court, and we will do everything necessary to submit the

13 crimes that occurred in the Republic of Macedonia. And to this end, we

14 have submitted evidence. You know that the criminal charges were brought

15 against approximately 20 individuals for serious crimes, crimes which are

16 prosecuted in accordance with international law, crimes which are within

17 the jurisdiction of The Hague Tribunal. So, of course, we will

18 cooperate.'"

19 "What about the disagreement with public prosecutor Stavre Dzikov?

20 He had a meeting with the representatives of The Hague Tribunal as early

21 as the 20th and most probably authorised work to take place in Ljuboten.

22 Were you not aware of that?"

23 "Look, whatever the public prosecutor greed to, that is a separate

24 and independent institution, and I have no intention of getting involved

25 in his affairs. I know what my responsibilities are, and I intend to

1 finish them in the way that I started."

2 JUDGE PARKER: Mr. Saxon.

3 MR. SAXON: Just for clarification, Your Honour, I'm wondering if

4 my learned colleague could tell us approximately when this video was made.

5 MR. METTRAUX: Well, Your Honours, we have received the document

6 from the Prosecutor, and we have not been able to put a certain date on

7 the video itself. But if it is an issue relevant to the Prosecutor, I'm

8 sure we can figure out with them.

9 In any case, at this stage, we would seek to tender this document,

10 Your Honour, and the transcript, which is under tab 39.

11 JUDGE PARKER: Tab 39.

12 MR. METTRAUX: Tab 39, Your Honour.

13 JUDGE PARKER: The video and transcript will be received.

14 MR. METTRAUX: And perhaps before the --

15 THE REGISTRAR: As Exhibit 1D102, Your Honours.

16 MR. METTRAUX:

17 Q. And perhaps before the break, Mr. Tucker, were you aware of that

18 particular video-clip? Have you ever seen it?

19 A. No, I haven't.

20 MR. METTRAUX: Would that be a convenient time, Your Honour.

21 JUDGE PARKER: I'm sure it would be, Mr. Mettraux.

22 We will resume at 11.00.

23 --- Recess taken at 10.28 p.m.

24 --- On resuming at 11.04 a.m.

25 JUDGE PARKER: Mr. Mettraux.

1 MR. METTRAUX: Thank you, Your Honour.

2 Q. Mr. Tucker, you will recall in the video that I have just shown to

3 you, the interview of Mr. Boskoski, that he indicated in the video that

4 the Ministry of Interior had been the first to ask for an investigation in

5 the village of Ljuboten. Do you recall that?

6 A. I recall Mr. Boskoski saying that in the video, yes.

7 Q. And in the course of your investigation, or in the course of your

8 meetings with various authorities, did you have an opportunity to verify

9 that claim or at least what you now to be the claim of Mr. Boskoski?

10 A. No, sir, I did not.

11 Q. Can I ask you to turn to tab 24 of your binder once again,

12 Mr. Tucker. This is, again, the Prosecutor's request for deferral.

13 MR. METTRAUX: And for the registry's assistance, this is P391,

14 and the ERN in question would be N000-9883-51.

15 Q. Mr. Tucker, if you can work with the same guidance, it would be,

16 again, this page 61 on the top right-hand corner.

17 A. Thank you.

18 Q. And this is the same material provided by the Macedonian

19 authorities about case Ljuboten.

20 A. Yes, sir.

21 Q. And I will ask you to look at the middle of the first paragraph,

22 in the section case Ljuboten, there's a sentence starting with the word:

23 "On August 142001, at 12.55."

24 Can you see that?

25 A. Yes, sir, I can.

1 Q. And I will just read out for the transcript. It says: "On August

2 14, 2001, at 1255 hours, the Ministry of Interior informed the deputy

3 public prosecutor and the investigative judge that there are five dead

4 bodies in the village the Ljuboten. The Ministry immediately informed an

5 expert team composed of the proposed -- the magistrate judge of the

6 Principal Court Skopje II, Skopje; principal public prosecutor; and

7 experts from the Ministry of Interior to examine the site.

8 Mr. Tucker, would you agree that this, in fact, supports the

9 comment made by Mr. Boskoski in the video which we've seen a moment ago.

10 A. Yes, it appears so.

11 Q. And, Mr. Tucker, I will have another binder given to you, to Your

12 Honours, and to the Prosecutor with another set of documents.

13 Mr. Tucker, in the course of your work in relation to this case,

14 or more generally in relation to the Macedonian situation, did you become

15 aware of public calls made by Mr. Boskoski to the effect that an

16 exhumation and an autopsy should take place in the village of Ljuboten?

17 Are you aware of that?

18 A. No, I'm not, sir.

19 Q. If I can ask you to turn to tab 40 of your binder, second binder,

20 that would be the first document. This is Rule 65 ter 130. As you can

21 see, this is a press report with a title, "Interior Minister Boskoski

22 expresses satisfaction with OSCE attitude," and it is dated 15 August,

23 2001. Do you agree?

24 A. I do, sir.

25 Q. And I will ask to you look at one of the last paragraph on this

1 document, starting with the words: "About the affair in Ljuboten."

2 Can you see that?

3 A. Yes, sir.

4 Q. And the report say this is: "About the affair in Ljuboten,

5 Boskoski informed that by the time the expert team had arrived on site,

6 the bodies were already buried."

7 Then there is a quote attributed to him: "In order to know truth,

8 an exhumation acknowledged by the Prosecutor will have to take place, he

9 explained."

10 Mr. Tucker, were you aware of this call by Mr. Boskoski for an

11 exhumation?

12 A. I was not, sir, no.

13 MR. METTRAUX: Your Honour, we would seek to tender this document.

14 JUDGE PARKER: It will be received.

15 THE REGISTRAR: As Exhibit 1D203, Your Honours.

16 MR. METTRAUX:

17 Q. You have heard also, I think, in the video that was shown to you a

18 moment ago, that Mr. Boskoski undertook to assist and support the work of

19 the Tribunal. Is that correct?

20 A. It is, sir, yes.

21 Q. And you will recall, I hope, that shortly after the events at

22 Ljuboten, Mr. Boskoski also set up a commission to look into the events of

23 Ljuboten. Are you aware of that?

24 A. I was not aware of that, no, sir.

25 Q. Are you aware that -- well, are you aware of the existence of a

1 report prepared by the commission set up by Mr. Boskoski to look into the

2 events at Ljuboten?

3 A. I was not aware at the time, but I am aware now, yes.

4 Q. Are you aware, perhaps, that following the issuance of this

5 report, the president or the head of this particular commission,

6 Mr. Mitevski, recommended that an exhumation and an autopsy should take

7 place in relation to Ljuboten? Are you aware of that?

8 A. I was not at the time. I am now.

9 Q. And, perhaps, I will show you the document, which may assist

10 later. It is under tab 41A of your binder.

11 MR. METTRAUX: Your honour, this is already admitted. It is

12 exhibit, Exhibit 1D33.

13 Q. Mr. Tucker, if you look at the top left-hand corner of the

14 document, it says that it the comes from the Republic of Macedonia,

15 Ministry of Interior, office of public security. It is dated the 7th of

16 September, 2001. It is sent to the public prosecutor's office and the

17 duty investigating judge of Lower Court Skopje II, and the title of this

18 document is "Motion" or "Recommendation," in another translation, "for

19 exhumation an autopsy."

20 Do you agree?

21 A. I do, sir, yes.

22 Q. And if I can ask you to turn to the third and last page of that

23 document in the English, which would be N000-7334-ET, you will agree that

24 the document in question was signed by Director Goran Mitevski. Is that

25 correct?

1 A. It is -- in the English translation, it indicates that, yes.

2 Q. And you can look, if you wish, at the Macedonian version of it on

3 the last page, to see that there is a signature there. Is that correct?

4 A. That's correct, sir, yes.

5 Q. And if I can ask you to look at the last paragraph on that

6 document, there is a recommendation that is made and reads as follows:

7 "Due to the aforementioned, we believe that the motion for exhumation and

8 autopsy is justified and should be accepted, with the aim of identifying

9 the five corpses and establishing the cause of death of the five

10 individuals from the village Ljuboten."

11 Does that correspond to your memory of what was requested by

12 Mr. Mitevski at the time and by the Ministry of Interior in general?

13 A. I was certainly not aware of this at the time; but, later, I was

14 aware of this document.

15 Q. And were you aware at the time of the call made by Mr. Mitevski

16 for this particular exhumation and autopsy?

17 A. No, sir.

18 Q. Were you aware, perhaps, that this particular call made by

19 Mr. Mitevski for an exhumation and autopsy had been made at the behest of

20 Mr. Boskoski himself?

21 A. I was not aware, no, sir.

22 Q. Can I ask you it turn to tab 41 of your binder. It is Exhibit

23 1D34.

24 As you can see from the --

25 MR. METTRAUX: Perhaps, I should assist the registry. There's

1 also a Macedonian version of this document, 1D34.

2 Q. If you can look at the cover page of that document, you can see

3 that it comes from the Ministry of Interior. It is dated November 2001,

4 and it is some information about the events in the vicinity of the Skopje

5 village of Ljuboten. Is that correct?

6 A. That's correct, sir, yes.

7 Q. And if I can ask you to turn to the last page in the English of

8 this document?

9 A. Yes, sir.

10 Q. I'd ask you to focus on the last paragraph, and I will read it out

11 to you. It says this: "Having in consideration the importance of the

12 exhumation as the investigative act, in order to resolve the reasons for

13 the death, the Minister of the Interior, Ljube Boskoski, immediately after

14 the case, has submitted the written recommendation to the principal public

15 prosecutor office, Skopje II, in Skopje to start conducting the process of

16 exhumation of the corpse of the people, in order to continue with

17 post-mortem and thorough examination."

18 Mr. Tucker, you would agree that this statement refers to the

19 document that I have shown to you a moment ago, or appears, in any case,

20 to refer to that document?

21 A. It certainly appears to, because I can't authenticate these

22 documents..

23 Q. And you agree also that on the basis of this particular document

24 Mr. Boskoski appears to have been the person on whose behest the request

25 or the recommendation was made; is that correct?

1 A. That would certainly be indicated by this document, yes, sir.

2 Q. I'm grateful. Are aware also, Mr. Tucker, that the Ministry of

3 Interior had immediately notified the competent investigative judge,

4 Mr. Nikolovski, that an operation had been taken place in Ljuboten and

5 that a recommendation was made to him for an autopsy and an exhumation?

6 Are you aware of that?

7 A. I'm not sure, no.

8 Q. Then I'll ask to you look at tab 64 of your binder, please.

9 MR. METTRAUX: Your Honour, this is, again, already an exhibit.

10 This is 1D73.

11 Q. And I'll just you go through this document with you quickly,

12 Mr. Tucker. As you can see, this is coming from the Ministry of Interior,

13 criminal police. This is an Official Note that is submitted by Simon

14 Dzidrovski and Besim Ramicevic. It is dated the 18 of September of 2001,

15 and it is dispatched to the director of MVR, Ministry of Interior,

16 publicity security bureau, head of criminal police section, analytics an

17 investigations sector, criminal technical sector, general crime sector.

18 Do you agree?

19 A. I do, sir, yes.

20 Q. And if you can look at the first paragraph of this Official Note,

21 it says that: "On 14th September of 2001, a consultation meeting

22 instigated by the investigative judge of Lower Court Skopje II, Dragan

23 Nikolovski, was held in the premises of the Forensic Medicine and

24 Criminology Institute in order to discuss the undertaking of measures, in

25 accordance with Article 244 of the Law on Criminal Procedure for the

1 exhumation and autopsy of individuals buried in the village of Ljuboten,

2 who died during the military operations that took place in the area."

3 Then, if you can pass over the next paragraph, which listed the

4 persons present on that occasion, there's a paragraph which reads:

5 "Mr. Nikolovski, the investigative judge, informs those present that

6 MVR," that's the Ministry of Interior "had notified the public

7 prosecutor's office in Skopje of the armed operation undertaken in the

8 area of the village of Ljuboten by the security forces and had recommended

9 the initiation of measures for the exhumation an autopsy of the

10 casualties."

11 Can you see that?

12 A. I can, sir, yes.

13 Q. And you will agree that this document suggests that the Ministry

14 of Interior had, in fact, informed the public prosecutor's office of the

15 exists of an operation in the area after the operation, and had

16 recommended the initiation of an exhumation an autopsy? Is that correct?

17 A. It certainly suggests so in this document, yes, sir.

18 Q. And if you can look at the next paragraph, it says: "In

19 accordance with the notification, deputy public prosecutor, Dragoljub

20 Cakic, dispatched the recommendation to the investigative judge,

21 Nikolovski, who called for the meeting with the aim of reaching an

22 agreement on the methods and means for the realisation of the

23 investigation."

24 Can you see that?

25 A. Yes, sir.

1 Q. There is also another document which I would wish to show you,

2 Mr. Tucker. This is already an exhibit, Prosecution Exhibit P55.10, and

3 you will find it under tab 83 of your binder.

4 A. Yes.

5 Q. Thank you. If you look at this document, Mr. Tucker, this comes

6 from the basic public prosecution office. It has a number, and it is date

7 the 18th of March 2002. It is sent to Basic Court Skopje II,

8 investigative judge, Mr. Dragan Nikolovski. Do you agree?

9 A. Yes, sir.

10 Q. And if I can draw your attention to the first paragraph of that

11 document, it says: "Regarding the initiative of the MOI-the directorate

12 for public security number 10-33282, dated 7 September, 2001, to the title

13 "XXRO number 109801," dated 10/09/2001, in accordance with Article 148,

14 paragraph 1 of the Code of Criminal Procedure, a proposal was submitted

15 regarding undertaking certain investigation actions, exhumation from

16 Article 244 of the Code of Criminal Procedure, so as to examine and

17 perform prosection of the bodies of unknown persons buried at the local

18 cemetery in the village of Ljuboten, determine their identity, cause of

19 death, time of death, the circumstances under which the deaths occurred,

20 since it was impossible to do so on the 13 and 14 August 2001, due to the

21 known reasons, on-site investigation by the competent bodies was made

22 impossible."

23 Is that correct that the first part of that very long sentence,

24 again, refers to the fact that the initiative for those measures came from

25 the MOI, and more specifically the directorate for public security? Do

1 you agree with that?

2 A. I do, sir.

3 Q. And if I can turn to the next tab in your binder, this is, again,

4 a Prosecution Exhibit. It is P55.13, 1-3.

5 Mr. Tucker, you will agree this appears to be an Official Note

6 regarding going on site in the village of Ljuboten, Skopje area. This is

7 dated the 19th of March, of 2002, and it comes from the basic public

8 prosecution office.

9 And if I can draw your attention, again, to first to the first

10 paragraph of that document, it reads as follow: "On 19 March 2002, upon

11 proposal of the basic public prosecution office in Skopje, and in relation

12 to the initiative of the MOI-directorate for public security, with number

13 1033282, dated 7 September 2001, and the proposal to the investigative

14 judge of the Basic Court Skopje II, XXRO number 1098-01, dated 10

15 September 2001, on undertaking an investigative action, exhumation from

16 Article 244 from the Criminal Code -- from the Code of Criminal Procedure,

17 so as to examine and perform prosection of the bodies of the ten persons

18 buried in the local cemetery in the village of Ljuboten in order to

19 determine their identity, cause of death, time of death, and the

20 circumstances under which death occurred, the investigative village judge

21 went on site in the village of Ljuboten with the purpose of becoming

22 directly familiar with the location and position of the buried persons,

23 all this so as to perform the exhumation as successful as possible."

24 Mr. Tucker, again, on the base of this document, you would agree,

25 once again, that the initiative for these steps taken had come from the

1 MOI-directorate for public security; is that correct?

2 A. That's correct, sir.

3 Q. And if I ask you turn, then, to the next tab in your binder.

4 MR. METTRAUX: Your Honour, this is also an exhibit, 1D73. I'm

5 sorry. We have reviewed this one. This is the next one that I would like

6 to bring to your attention. I apologise to the registry.

7 Q. This is it tab 86 of your binder. This is part of Exhibit P55,

8 and it has an ERN ET-N002-1148-9002-1148-1, and the Macedonian version of

9 this document is N002-1146-003.

10 Mr. Tucker, I'll go through this document briefly with you. As

11 you can see from the title on the left-hand corner, or the sender in any

12 case, it comes from the basic public prosecution office. It has the same

13 number that we have seen several times before, 1098-01. It is dated the

14 10th of September of 2001, and it is addressed to the Basic Court Skopje

15 II, to the attention of the investigative judge; is that correct?

16 A. That's correct, sir.

17 Q. And the title of the document is: "A proposal on undertaking

18 certain investigative action." Is that correct?

19 A. Yes, sir.

20 Q. And if you look at the second paragraph of that document, I will

21 read it out to you. It starts with the word: The public prosecution

22 office": "The public prosecution office in relation to this case, acting

23 pursuant to Article 148, paragraph 1 of the Code of Criminal Procedure,

24 and upon the written initiative of the MOI which has been handed to this

25 title, during duty outside of regular working hours, on 7 September 2001,

1 gives a proposal on undertaking certain investigation action; namely, as

2 follows: In order to determine the identity of the five person buried on

3 14 August 2001 in the local cemetery in the village of Ljuboten, to

4 determine the cause of death, time of death, and circumstances under which

5 death occurred, and so as to perform an exhumation and prosection of their

6 bodies to order the investigation, action exhumation, in accordance with

7 Article 244 of the Code of Criminal Procedure."

8 And, again, you will agree that this confirms the fact that the

9 initiative for this investigative measures had come from the MOI. Is that

10 correct?

11 A. Yes, sir.

12 Q. And if you look at the last paragraph of this document, it says:

13 "The exhumations and afterwards the examination and prosection are to be

14 assigned to the Institute of Forensic Medicine and Criminology with the

15 medical faculty in Skopje." Is that correct?

16 A. Yes, sir.

17 Q. And it is signed by deputy public prosecutor, Dragoljub Cakic; is

18 that correct?

19 A. Yes, sir.

20 Q. And there's another document I would wish to show you. It is,

21 again, a Prosecution Exhibit. It is under tab 90 of your binder. This is

22 P55.11?

23 A. Yes, sir.

24 Q. And I will draw, again, your attention to the top of the document

25 on the left. This is, again, a document that comes from the basic

1 prosecution office. It bears, again, the same number, 1098-01. It is

2 dated 19/03/2002, and sent to Basic Court Skopje II, again, to the

3 attention of Mr. Dragan Nikolovski. And I will draw attention, again, to

4 the first paragraph.

5 And, perhaps, to save time, I will ask to you look through it,

6 because it is similar to the paragraph that I have read to you a number of

7 times, and simply to ask you to confirm that, again, this document

8 suggests that the MOI, and in particular the directorate for public

9 prosecutor security, initiated the various investigative measures

10 mentioned in that paragraph. Is that correct?

11 A. Yes, sir, that's correct.

12 Q. And you will also recall the view taken by Mr. Boskoski in the

13 video that I have shown to you earlier on, that he understood that at this

14 stage, at the time of the video in any case, the responsibility with the

15 investigation was with the public prosecutor; is that correct?

16 MR. SAXON: Objection, Your Honour.

17 JUDGE PARKER: Yes, Mr. Saxon.

18 MR. SAXON: We still don't know the date of the -- when this video

19 was made that was shown to Mr. Tucker a little while ago.

20 MR. METTRAUX: I have suggested no date, Your Honour, to the

21 witness. I said at the time when the video was taken.

22 MR. SAXON: Well, no. That's correct, but the question was

23 phrased this way: "That Mr. Boskoski understood at this stage, at the time

24 of the video in any case, the responsibility with the investigation was

25 with the public prosecutor." But the problem that I see is, if we don't

1 know when Mr. Boskoski made those statements that were recorded on the

2 video, how --

3 JUDGE PARKER: But if those statements reveal a state of knowledge

4 by Mr. Boskoski, isn't the question a proper one, even though we don't

5 know the time? It remains an unsolved mystery, the time. But if the

6 video shows Mr. Boskoski saying that Mr. Saxon is a nice man, isn't it

7 fair to ask -- isn't it clear from the video that at that time

8 Mr. Boskoski thought Mr. Saxon a nice man?

9 MR. SAXON: Agreed, Your Honour. Thank you.

10 JUDGE PARKER: Carry on, Mr. Mettraux.

11 MR. METTRAUX: I haven't seen this --

12 JUDGE PARKER: And Mr. Boskoski agrees.

13 MR. METTRAUX: I haven't seen this particular video, Your Honour,

14 so I will stick with the other video.

15 Q. Mr. Tucker, would you agree that at that time when Mr. Boskoski

16 gave the interview, which you saw on your screen a moment ago, he

17 expressed the view that at that time the person in charge of the

18 investigation was the public prosecutor of the Republic of Macedonia? Is

19 that correct?

20 A. That's correct, sir.

21 Q. And I'd like to turn now to a somewhat different issue,

22 Mr. Tucker, and that's a point that we have already touched upon on a

23 number of occasion, but that is the issue of security, which I mentioned

24 earlier. Do you recall?

25 A. I do, sir, yes.

1 Q. Do you recall also that during your various meetings with the --

2 with different Macedonian authorities, they had indicated to you that they

3 were concerned about certain risk and difficulties in their investigation.

4 Do you recall that?

5 A. I do sir.

6 Q. And do you recall in particular that these concerns as to security

7 and risks involved in the investigation related to, among other

8 investigation, the Ljuboten investigation. Do you recall that?

9 A. Yes, sir, I do.

10 Q. And I will ask to you go back, if you may, to your first binder,

11 which is at your feet, I believe, and to turn to tab 31, Mr. Tucker. That

12 would be Exhibit 1D197, MFI.

13 Tab 31, Mr. Tucker.

14 A. Thank you. Yes, sir.

15 Q. And I'd ask to you look at the last paragraph on that page. We

16 have already seen it briefly earlier on. Those are statements or terms

17 that were attributed to Mr. Serafimovski, the acting higher public

18 prosecutor, and he said: "He spoke of the difficulties involved in both

19 investigations and the danger of those investigating the issues and those

20 supplying the information. He also referred to the media release of

21 information that also added to the difficulties and an increase in tension

22 within the communicates affected by the communication. He also referred

23 to previous attacks by NLA members.

24 Do you recall Mr. Serafimovski saying this?

25 A. Yes, sir, I do.

1 Q. And if you can turn to the next page, this is, again, a comment

2 that we have seen. But Mr. Serafimovski then spoke about Ljuboten, and he

3 said: "The practical difficulties that faced the investigation team,

4 security problems and an inability to visit the scene of the killings, as

5 well as the grave sites. He also spoke of the official version of the

6 events on the day of the incident. He said that five members of the KLA

7 had been killed at the scene and were laying in a field where they fell.

8 And he said: 'However, on site investigation was impossible due to

9 security considerations. They received information that the deceased were

10 buried the following day.' He explained the judicial process and the

11 appointment of an investigative judge to take charge of the

12 investigation."

13 Again, Mr. Tucker, do you recall Mr. Serafimovski expressing those

14 concerns and making those comments?

15 A. I do, sir, yes.

16 Q. And you recall also, I believe we have talked about that a moment

17 ago, that the Macedonian authorities had expressed to you their readiness

18 to continue with the investigation as soon as the security situation would

19 permit. Do you recall that?

20 A. I do, sir.

21 Q. And this statement, as can be seen from this same note, was made

22 by Mr. Cakic, the deputy primary public prosecutor. Is that correct?

23 A. Yes, sir.

24 Q. And that same prosecutor explained to you that one of the reasons

25 why he had particular security concern was that he had himself experienced

1 being what he said "blown up" during such an exercise. Is that correct?

2 A. Yes, sir, it is.

3 Q. Is that also the situation that later on in 2002, in March 2002,

4 when you met again with the Macedonian authorities -- the competent

5 Macedonian authorities, they, again, expressed their concern or security

6 concerns to you in relation to the investigation in Ljuboten?

7 A. That's correct, sir, yes.

8 Q. And do you recall, in particular, the investigative judge telling

9 you about his concern in this matter?

10 A. I do, sir, yes.

11 Q. Can I ask you to turn to your second binder, I am sorry to ask you

12 to juggle, and to turn to tab 50, please.

13 MR. METTRAUX: Your Honour, this is Rule 65 ter 1D663. It has an

14 ERN 1D00-5898, and there is no Macedonian translation.

15 A. I'm sorry, sir, which tab?

16 Q. 50, sir, 5-0.

17 A. Thank you. Yes, sir.

18 Q. And I will go through this. It is it again, you will agree, an

19 investigator's note it is dated the 7th of Match of 2002. The time is

20 1.00, and the purpose of the meeting is to introduce and discuss the draft

21 copy of the operational order for the exhumation project at Ljuboten. Do

22 you agree?

23 A. Yes, sir, I do.

24 Q. And if you can turn to the last page, can you confirm that this

25 note was prepared by you?

1 A. I can, sir.

2 Q. And if you look at the list of persons present during that

3 meeting, you have, again, Mr. Dragoljub Cakic, the deputy public

4 prosecutor of Skopje II regional court; a person called Jani Nica, who is

5 a judge at the primary court in Skopje II; Mr. Dragan Nikolovski, the

6 investigative judge of primary court Skopje II; Mr. Szydlik, your

7 colleague, who was an operations officer of the ICTY field office;

8 yourself; and Ms. Brajovic, your interpreter. Is that correct?

9 A. That's correct, sir.

10 Q. And, as can be seen from both the title of this document and the

11 first paragraph of the document, the purpose of the meeting was to discuss

12 a draft plan for the exhumation which you and your colleague, Mr. Eamon

13 Smith, had prepared for the Ljuboten exhumation. Is that correct?

14 A. That's correct, sir, yes.

15 Q. And if I can draw your attention to the second paragraph in that

16 document, it says this: "The investigative judge," which would be

17 Mr. Nikolovski, "spoke of the potential security concerns that he and his

18 colleagues had over the exhumation project. He reinforced that all were

19 willing to undertake the responsibility. However, he wished to stress

20 that fears he referred to related to the security of all those -- all of

21 those present during the on-site operation."

22 Can you see that?

23 A. Yes, sir, I can.

24 Q. And does that accord with your memory of what Judge Nikolovski

25 said at the time?

1 A. It does, sir, yes.

2 Q. And is that also correct that during this meeting, and during

3 other meetings, you indicated that the issues of security and the security

4 concern of the participants would be raised with international

5 organisations, in particular NATO and the OSCE? Is that correct?

6 A. That's correct, sir.

7 Q. Is it also correct that these concerns, the security concerns

8 which were mentioned to you both in November of 2001 and March of 2002,

9 still existed at the time in Macedonia in September of 2002, when the

10 Prosecution applied to have the case referred to its jurisdiction? Do you

11 know that?

12 A. That is difficult for me to answer because I finished my

13 responsibilities on site, if I might say, in May -- April/May of 2002.

14 Q. In that case, I will inflict additional juggling on you,

15 Mr. Tucker, and if I can ask to you back to the first of your binder and

16 to turn to tab 26, please. This is, again, Rule 65 ter 1D638.

17 MR. METTRAUX: Your Honour, this is, again, the transcript of the

18 deferral hearing in this and other cases. And with the registry's

19 assistance, I would like to see page 17 on the screen, please.

20 A. So tab 26.

21 Q. That's correct.

22 MR. METTRAUX: And if I could ask to you go to page 17 of the --

23 thank you.

24 Q. And I will draw your attention to line 8 of page 17. Those are

25 the comments of Mr. Dzikov who represented the Macedonian authorities

1 during that hearing.

2 And on the 25th of September of 2002, Mr. Dzikov said this:

3 "Still, there is we well-founded fear that the security situation in the

4 Republic of Macedonia and the unstable peace that was established after

5 last year's armed clash caused by the terrorist criminal gangs that are

6 still operating in the Republic of Macedonia could be disrupted if these

7 cases would be tried by the Macedonian courts."

8 Would you agree that the concerns expressed to you earlier were,

9 again, reiterated in this particular instances by Mr. Dzikov and, in

10 particular, as regard the cases in question?

11 A. Yes, sir, I can.

12 Q. And if I ask to you go to tab 24 of this binder, this is Exhibit

13 P391. And I will direct yourself to, again, annex H. This would be

14 N00-9883-38 [sic]. N000-9883-38.

15 Mr. Tucker, this is, again, a letter which we have briefly seen

16 earlier. And I won't go through the entirety of this document at this

17 stage, but simply ask you to turn to the last page of that document, where

18 the signature of Mr. Dzikov appears.

19 A. Is that page 59, sir?

20 Q. That would be N000-9883-41, on the top right-hand corner of the

21 document.

22 A. I beg your pardon. Yes, sir.

23 Q. And if can I draw your attention to the third paragraph on that

24 page, this is what Mr. Dzikov wrote to Madam Del Ponte: "The security

25 situation in Republic of Macedonia, even after 26 September 2002, is still

1 endangered by constant attacks of persons that use violence for political

2 goals. There are still murders of civil persons and members of the

3 security forces, kidnapping of civil persons, violent acts from the

4 Albanian terrorist gangs which call themselves "Army of Republic,"

5 "Ilirida" [phoen], and ANA, Albanian Liberation Army, and terrorist gangs

6 from the protectorate Kosovo, FRY, which illegally legal enter the

7 Republic of Macedonia and are a permanent threat and real danger for the

8 security, and, at the same time, these are serious invitations of

9 international humanitarian law."

10 Can you see that?

11 A. Yes, sir.

12 Q. And then Mr. Dzikov goes on to say: "Because of this critical

13 condition of the state, the postponing of the prosecution and the

14 hesitancy of the Office of the Prosecutor of the ICTY and the ICTY, which

15 lead to expansion of terrorism and serious violations of international

16 humanitarian, and in order to reconcile the legal views regarding the

17 exercise of primacy, I consider that there is a need of an urgent joint

18 working meeting with you and the president of the ICTY, Judge Claude

19 Jorda."

20 Mr. Tucker, were you aware of the fact that Mr. Dzikov had

21 complained about the hesitance of your office in relation to these

22 matters?

23 A. Not specifically, no, sir.

24 Q. Were you aware that Mr. Dzikov was not the only representative of

25 the Macedonian authorities that had complained about the hesitancy of your

1 office, but that Professor Duma, the head of the Forensic Institute, had

2 made such a complaint? Are you aware of that?

3 A. No, sir, I was not aware.

4 Q. Can I ask you to turn to your second binder, Mr. Tucker, and to

5 look at tab 60. It is Exhibit P2898. It is a Prosecution exhibit.

6 If you can look at the first page, Mr. Tucker, at first, this is a

7 document that comes from the university, the Medical Faculty of the

8 University, and more specifically the Forensic and Criminology Institute.

9 It is dated the 22nd of May 2003, and it is sent to Mr. Nikolovski,

10 Dragan.

11 And if you look at the second page of that document, you will see

12 it is signed by Mr. Duma, Professor Duma. I will just read to you the

13 last paragraph of that document. It says this: "Besides this situation,

14 professional staff of the Forensic Institute recommend that further delay

15 of the commencement of the activities of the ICTY in analysing the

16 concrete even might have negative repercussions over the Macedonian state,

17 and, therefore, it was decided to provide the requested documentation to

18 the authorised court, in hope that the authorised institutions and bodies

19 of the state will provide conditions for further work and existence of the

20 institute in all its segments."

21 Were you aware of that document, or in any case, of the matter

22 raised by Mr. Duma about delays in the commencement of ICTY activities?

23 A. I was aware of neither the document or the comment, sir.

24 MR. METTRAUX: Your Honour, also for the record and concerning the

25 issue of security in Macedonia during the relevant period, I will draw

1 Your Honour's attention to paragraph 18, 1-8, of the Trial Chamber's

2 decision on deferral, which is at tab 37 of your binder.

3 Q. Mr. Tucker, can you confirm that another matter which was raised

4 by the Macedonian authorities during your meetings, quite frequently in

5 relation to the investigation, was the problems which they encountered

6 because of the lack of cooperation of the ethnic Albanian community, or at

7 least part of that community. Do you recall that?

8 A. I do sir, yes.

9 Q. And do you recall, in particular, or perhaps I will ask you about

10 the particular incident. Do you recall that these particular concerns

11 were raised, in particular, in relation to the Neprosteno and Ljuboten

12 investigations?

13 A. Yes, sir.

14 Q. I'd ask you to go back to your first binder, Mr. Tucker.

15 MR. METTRAUX: If the registry could bring up Rule 65 ter 1D613.

16 That's the document under tab 31 of your binder. I'm sorry. This has

17 been MFI'd as 1D197.

18 Q. This is, again, Mr. Tucker, the same investigator's notes that we

19 have seen on a number of occasion before, but I would like you to turn to

20 the second page of that document and to the fourth paragraph on that page.

21 Those are comments attributed to Mr. Cakic, the public prosecutor, and he

22 said this: "They have not been able to visit the scene of the killings,

23 to conduct an on-site investigation or visit the site of the graves of the

24 victims. No interviews had been conducted with the relatives of the

25 victims or any other investigation with other potential witnesses.

1 (Security concerns)."

2 Do you recall that Mr. Cakic explained to you that they had been

3 unable to interview relatives because of the security concerns.

4 A. I do, sir, yes.

5 Q. Are you aware, Mr. Tucker, that the Macedonian police had, in

6 fact, attempted unsuccessfully to obtain information from villagers as to

7 the identity of the deceased?

8 A. Yes. I was aware that the investigative judges had tried, and I

9 assume that would have been with the support of the police.

10 Q. And are you aware of the fact that the villagers refused to

11 provide that assistance to the police?

12 A. Yes. My knowledge was refusal to give the information to the

13 investigative judges, which may or may not be the same things.

14 MR. METTRAUX: Your Honour, I will simply indicate for the record

15 or draw attention of the Chamber to Exhibit P104 and Exhibit 1D190, on

16 that point.

17 Q. Mr. Tucker, in the course of those meetings, do you remember a

18 particular occasion where the state prosecutor, Mr. Dzikov, had

19 underlined, once again, the unwillingness of the Albanians to provide them

20 with information pertaining to these particular investigations, Neprosteno

21 and Ljuboten? Do you recall that?

22 A. Yes, sir, I do.

23 Q. And if I can ask you to go backward in your binder to tab 29, this

24 is Rule 65 ter 1D612. It is MFI'd as 1D196. This is one of your

25 investigator's notes. It records a meeting of the 27 of November of 2001

1 with Mr. Dzikov and one of his assistants.

2 I would like to draw your attention, more specifically, to the

3 next page -- well, sorry, Mr. Tucker. Perhaps, we'll go first on the

4 first page simply to record the fact this fact: "The public prosecutor,"

5 that's the first paragraph, "welcomed the representative of the ICTY. He

6 stated that he was surprised to hear that the Prosecutor had only opened

7 investigation into two cases, Neprosteno and Ljuboten."

8 Can you see that?

9 A. Yes, sir, I do.

10 Q. And then if you look at the second paragraph: "He stressed the

11 view of the Prosecutor," and that's Mr. Milner speaking. "He stressed the

12 view of the Prosecutor that Macedonia was a sovereign state and had the

13 responsibility and compatibility to investigate crimes of this nature. He

14 stated that it was not within the mandate of the Tribunal to interfere

15 with that judicial process."

16 Can you see that?

17 A. Yes, sir.

18 Q. And then in the next sentence, you record an agreement between the

19 parties present that: "It was agreed that it would not be beneficial to

20 rush any of the investigations." Is that correct?

21 A. Yes, sir.

22 Q. And if you can now turn to the second page, please, Mr. Tucker,

23 I'd like to draw your attention to the second paragraph on that document,

24 which started with the word, the "PP." That would be the public

25 prosecutor.

1 Mr. Dzikov said this: "The public prosecutor stated that whatever

2 the outcome of the investigations, the Macedonian authorities are

3 placed -- pleased with the involvement of the ICTY as an independent

4 investigative body. There followed some debate concerning, A, the build

5 up of the tension in the area of the exhumation, arrest of any suspects,

6 the kidnapping of civilians, and the murder of three police officers; and,

7 B, the problems of obtaining details of crimes from Albania witnesses."

8 Do you remember Mr. Dzikov telling you this?

9 A. I do, sir, yes.

10 Q. And do you recall also that Mr. Dzikov indicated to you that that

11 one particular problem in investigating that sort of case involving

12 Albanian witnesses was the brutal ways or manners of the NLA. Do you

13 recall him tell you that?

14 A. Yes, sir.

15 Q. And if you can look at the paragraph in this same document which

16 starts with the word "PP" and "DM." "So public prosecutor and Dennis

17 Milner discussed the operational difficulties in obtaining the cooperation

18 of Macedonian Albanian population, NLA tactics of amongst other fear and

19 extortion."

20 Do you recall that discussion between Mr. Dzikov and Mr. Milner?

21 A. I do, sir, yes.

22 Q. And you will agree, I hope, that the NLA, in fact, did not

23 hesitate to use violent means to prevent investigations. Do you agree

24 with that?

25 A. I certainly do, yes, sir.

1 Q. And the reference to the three policemen earlier in the documents

2 that had been killed, you would agree that those three policemen were

3 three policemen sent to Neprosteno to protect the exhumation site, is that

4 correct, and they were killed by the NLA?

5 A. That's correct, sir. The incident occurred the day before the

6 first date of the exhumation at Neprosteno.

7 Q. And are you also aware of the fact that on at least one occasion

8 the NLA threatened to blow up courtrooms in Skopje? Are you aware of

9 that?

10 A. Yes, sir.

11 Q. And they made that threat in relation to the persons that had been

12 arrested during the Ljuboten incident; is that correct?

13 A. To my recollection yes, sir, that's correct.

14 Q. Can you also recall a particular meeting with Prosecutor Cakic

15 where he highlighted the difficulties to obtain information and

16 cooperation from the Albanian community? And what I'm more interested

17 in: Can you recall that the Prosecution, Cakic, underlined the importance

18 of the involvement of the OTP to assist with obtaining that information?

19 A. I do, sir. I think it is fair to say that in relation to both the

20 exhumations of the feeling of the Macedonian authorities of the importance

21 of the -- the attendance of the Office of the Prosecutor.

22 Q. And I will ask, perhaps, to look at another one of your

23 investigator's note, Mr. Tucker. This is under tab 34 of your binder.

24 This is it Rule 65 ter 1D615.

25 Mr. Tucker, as you can see, this is another one -- or I'll ask you

1 to confirm, this si another one of the investigator's notes prepared by

2 you; is that correct?

3 A. That's correct, sir, yes.

4 Q. And it is about a meeting arranged by Mr. Szydlik for the visit of

5 Mr. Milner, and the meeting took place on the 29th of November 2001 in the

6 office of the deputy primary public prosecutor in Skopje; is that correct?

7 A. That's correct, sir.

8 Q. And if I can ask you to turn to the next page, to the fourth

9 paragraph, in particular, of that document, which started with the words:

10 "Mr. Sokic," which is, in fact, Mr. Cakic. Can you see that?

11 A. Yes, sir.

12 Q. And it says: "Mr. Cakic then spoke at length about the closeness

13 of the Albanian community and the difficulties experienced in obtaining

14 information from one Albanian about another. However, it was his belief,

15 and that of his colleagues, that the community would speak to

16 representatives of the ICTY because of a trust that Macedonians have

17 generally in the work of the Tribunal. He also reaffirmed the willingness

18 and wish of himself and his colleagues to carry out the responsible of

19 their office.

20 "He stated that the investigative judge had already accepted the

21 facts relating to five victims, and he believed that the investigative

22 judge had already been in contact with Professor Duma at the Forensic

23 Institute."

24 Mr. Tucker, does that, again, accord with your memory of this

25 particular meeting or generally with the meeting you had with the

1 authorities?

2 A. Yes, sir, it does.

3 Q. Can you recall another occasion when Prosecutor Cakic explained to

4 you that this lack of cooperation and lack of trust on the part of the --

5 or at least a part of the Albanian population of Macedonia towards the

6 authorities extended to things such as providing information for

7 post-mortem examinations in the context of criminal proceedings? Can you

8 recall that?

9 A. I can, sir, yes.

10 Q. And if I can ask you to look at tab 50, 5-0, in your second

11 binder, Mr. Tucker, this would be Rule 65 ter 1D663.

12 This is a meeting -- or the record of a meeting which we have

13 already seen, Mr. Tucker. It is dated the 7th of March 2002 in the

14 Prosecution public office, and, again, present are Mr. Cakic, Jani Nica,

15 Nikolovski, Szydlik, yourself, and your translator, Ms. Brajovic.

16 And I would like you to turn to the second page, please, and to

17 the second paragraph in particular, where Mr. Dragoljub Cakic is recorded

18 as saying the following: "Dragoljub Cakic raised the point that even

19 during peacetime the Albanian community never consented to post-mortem

20 examination of the dead, including instances of homicide. He queried the

21 consent provided by the relatives of the deceased for such an operation to

22 proceed now."

23 Do you recall Mr. Cakic raising this question with you?

24 A. Yes, sir, I do.

25 Q. And if you go to the next paragraph, we'll see you gave an answer

1 to Mr. Cakic at the time. It says: "Howard Tucker stated that, to his

2 knowledge, these issues had been approached with the relatives from an

3 early stage. He said that family had agreed to the procedure, as long as

4 the ICTY closely monitored all stages of the investigation."

5 Is that in fact what you answered Mr. Cakic at that time?

6 A. Yes, sir.

7 Q. And if you can go further down in that document in the passage

8 that starts: "Because of the unique aspects."

9 Can you see that?

10 A. Yes, sir.

11 Q. I will trade for the transcript. It says: "Because of the unique

12 aspect of this case, and as a result of several meetings with the ICTY and

13 the office of the public prosecutor of Macedonia, the above-named court

14 official are aware that such information should be forthcoming as a result

15 of the current initiative; that is, the forthcoming ICTY meeting with the

16 relatives of the families. The court has appointed the above-named

17 individuals to supervise the investigation; however, in order for the

18 investigation to proceed in accordance with the law, they urgently require

19 certain information.

20 "The very least that is required at this stage are the names and

21 details of the deceased, where they died, and the dates of death, if

22 possible. Once that is completed, the relevant official can request the

23 services of the Forensic Institute and the department -- once that is

24 completed, the relevant official can request the services of the Forensic

25 Institute and the Department of Criminal Technology. In reality, they are

1 already informed of this, but they require the other details in order to

2 complete the official 'route.'"

3 Can you recall that exchange during the meeting, Mr. Tucker?

4 A. Yes, sir, I can.

5 Q. And is that correct that because of the inability of the

6 Macedonian authorities to obtain that information directly from the

7 families of the victims, Mr. Szydlik, your colleague, in fact, took care

8 of this? Is that correct?

9 A. From my recollection, yes, he, with the assistance of others.

10 Q. And you were aware also that, as we have just read, without this

11 particular information, the procedure in Macedonia could not legally go

12 forward? Would you agree?

13 A. I do, sir, yes.

14 Q. And they also made it clear to you at the time that, once they

15 would obtain that information from you, they would be able and were

16 willing to move forward with the investigation; is that correct?

17 A. Yes, sir.

18 Q. And, perhaps, I will ask you to look at tab 49 of your binder.

19 This is Rule 65 ter number 1D662. This is another one of investigator's

20 notes, Mr. Tucker. The purpose of this meeting, according to the

21 document, was to appraise the department of the proposed plan from the

22 exhumation of ten individuals from the cemetery in the village of

23 Ljuboten. The meeting took place on 7 March 2002 at 1020, in the

24 Department of Criminal Technology in Skopje, and present were Miroslav

25 Uslinovski, the chief of the Department of Criminal Technology; Simon

1 Dzidrovski head of the identification unit of the Department of Criminal

2 Technology; Ms. Jova Kadrajovic [phoen], translator; and yourself. Is

3 that correct?

4 A. That's correct, sir.

5 Q. And if I could ask you to turn to the fourth page of that

6 document, the last page of the document, to confirm that the note was

7 prepared by you?

8 A. I do so confirm, sir.

9 Q. And if I could draw your attention to the passage which is under

10 the highlighted title, "Concerning obtaining official document such as

11 birth certificate, death certificate, and medical records." There's a

12 statement attributed to yourself which reads as following: "HT," Howard

13 Tucker, "stated that the investigative judge had stated the following: 'If

14 the details of the deceased full names were obtained, including

15 information of the date and place of birth, father's name, if the address

16 of the deceased at the time of death were also included, and whether the

17 deceased was a Macedonian citizen.'"

18 And would appear to reflect or to refer to the previous meeting

19 that we've looked at; is that correct?

20 A. That's correct, sir.

21 Q. And then you say: "Then it would then be possible for the

22 judicial court authorities through official channels to obtain all the

23 relevant documentation in the correct manner, highlighted. Therefore the

24 question of admissibility would not arise."

25 Can you see that?

1 A. Yes, sir, I can.

2 Q. And is that correct, in fact, that you had discussions with the

3 judicial authorities at the time, in particular as relating to concerns

4 that, unless the material was obtaining legal matter, it would not be

5 admissible in court. Do you recall that?

6 A. I do, sir.

7 Q. Is that also correct that the families of the victims had agreed

8 to the exhumation only under the conditions that you, the Office of the

9 Prosecutor, would be present during the entire exhumation process and

10 would closely monitor each stage of the process of exhumation an autopsy?

11 Is that correct?

12 A. That's correct, sir.

13 MR. METTRAUX: Your Honour, I am going to embark on a slightly

14 different topic, and I wonder if that is a proper time. If it is not, I

15 will go on, Your Honour.

16 Your Honour, I will certainly continue until half past.

17 Q. Mr. Tucker, is that also correct that during one of the meetings

18 which you had with the competent authorities, in particular with

19 Prosecutor Cakic, that he had asked you to convince the villagers to talk

20 to them? "Them" being the judicial authorities. Do you recall that?

21 A. I do, sir.

22 Q. And do you recall that your initial response at that time was that

23 you had preliminary information, which suggested that the villagers would

24 be unwilling to do so? Do you recall saying that?

25 A. I do, sir. I think it was also unwilling for them to travel to

1 Skopje to do so.

2 Q. I'm grateful. Could you please turn to tab 50 of the binder

3 please. It is, again, Rule 65 ter 1D663.

4 MR. METTRAUX: And I will ask the registry to move to page 5 of

5 that document.

6 Q. This is the same -- one of the notes that we have already had a

7 look at, Mr. Tucker. And if can I draw your attention to the section of

8 the document that starts under the title: "Other matters.

9 In this note, you recorded the following: "Dragoljub Cakic stated

10 that ordinarily relatives of the deceased and other witnesses would come

11 before the investigative judge and make a statement about the events under

12 oath. This statement would contain much of the information necessary to

13 speedily advance the investigation. Many of the potential difficulties

14 could be overcome if this procedure could be followed."

15 "Dragoljub Cakic accepted the difficulties involved and the

16 likelihood that the relatives and other witness would refuse to cooperate

17 and probably refuse to come to the court building. He stated that the

18 court could grant an assortment of security guarantees, including closed

19 session hearings with full protective measures. He followed this by

20 saying that the only person present would be the investigative judge and a

21 court clerk."

22 And then you're responded in the following terms: "Howard Tucker

23 replied by saying that he had not spoken to the witnesses of family

24 members, but the investigator stated that he had information that

25 suggested that Dragoljub Cakic was correct in this belief that they, the

1 relatives of the deceased, would not be willing to come to court to swear

2 their statements.

3 "However, Howard Tucker asked if it were possible for

4 investigative judge and court official to travel to another location and

5 to receive/accept the statements under oath in a non-court building.

6 "Dragoljub Cakic stated that this was possible, though unusual.

7 Special judicial approval would have to be applied for and granted, prior

8 to such an event occurring."

9 Does that accord with your memory of this exchange Mr. Tucker.

10 A. It does, sir.

11 Q. And is that correct that you then, you and your colleague,

12 Mr. Szydlik, met and talked to a number of representatives from the

13 village of Ljuboten?

14 A. That's correct, sir.

15 Q. And is that also correct that, as had been foreseen by you during

16 the particular meeting we discussed, the family of the victims refused to

17 go to the court in Skopje to give a statement to the Macedonian

18 authorities?

19 A. Yes, sir, that's correct.

20 Q. And the families of the victims requested that or agreed that any

21 such meeting will have to take place in a different location; is that

22 correct?

23 A. That's correct, yes, sir.

24 Q. And they agreed to be interviewed by the investigative judge at

25 the field office -- or I'm sorry, the headquarters of the OSCE in Skopje;

1 is that correct?

2 A. That's correct. On a time-line, sir, I had already approached

3 this subject with Susan Ringgaard in relation to the possibilities of

4 using the OSCE premises to obtain her agreement in principle to that being

5 able to take place.

6 Q. I am grateful for this, Mr. Tucker. Is that correct also that one

7 of the conditions that were set by the villagers, to agree to talk to the

8 investigative judge, was that a representative of your offers, the Office

9 of the Prosecutor, should be present during those interviews? Is that

10 correct?

11 A. I believe that's correct, yes, sir.

12 Q. And, in fact, Mr. Szydlik your colleague, the operation officer,

13 accompanied the villagers to all of the interviews and was present during

14 the meetings with the investigative judge; is that correct?

15 A. That's correct, sir.

16 MR. METTRAUX: Your Honour, rather than going through each and

17 every one of those documents, I will simply record the relevant court

18 records. This is under tab 52, following of Your Honours's binder, and it

19 has the following numbers: ET-N002-1210 -- they all part of P55. It is

20 ET-N002-1210; ET-N002-1212; ET-N002-1214; ET-N002-1216; ET N002-1208; ET

21 N002-1220; ET-N002-1222.

22 Q. Is that correct also, Mr. Tucker, that this meeting of, I believe,

23 8th of March 2002 was the first such meeting which you had with the

24 villagers of Ljuboten? Is that correct?

25 A. That's correct, sir.

1 Q. And the purpose of this meeting was to discuss, once again, the

2 operational plan for the exhumation at the cemetery in the village of

3 Ljuboten. Is that correct?

4 A. Yes, sir.

5 Q. And if that can be of assistance to you, Mr,. Tucker I will draw

6 your attention to tab 51 of your binder, which is already an exhibit as

7 1D9.

8 A. Thank you, sir.

9 Q. Is that correct, Mr. Tucker, that it took quite a bit of

10 convincing on your part and the promise that the OTP would be involved in

11 all stages of the process and that there would be no police present in the

12 village for the representatives to agree to the exhumation operation. Is

13 that correct?

14 A. That's correct, sir.

15 Q. And in your note, I believe, you indicated that at the time there

16 was, what you term, I believe, "a huge mistrust of anything Macedonian on

17 the part of the Ljuboten villagers." Do you recall saying that?

18 A. I do.

19 Q. Perhaps, rather than paraphrasing you, I will ask to you look at

20 the third page of this documentary.

21 A. Yes, sir.

22 Q. And I will ask you, again, to confirm this is note prepared by

23 yourself; is that correct?

24 A. That's correct, sir.

25 Q. And the meetings with the representatives of the village took

1 place on the 8th of March 2002; is that correct?

2 A. That's correct.

3 Q. And it took place in the school in Ljuboten?

4 A. Yes, sir.

5 Q. And if you could you turn to the third page after that document,

6 the last page, you discuss, in this note, various matters pertaining to

7 the exhumation and autopsy, and if I can draw your attention starting with

8 the words, "Anyway." Can you see that?

9 A. Yes, sir.

10 Q. Do you recall that one of the issues that raised difficulties with

11 the families was the suggestion, or the possibility in any case, that the

12 bodies that were to be exhumed in Ljuboten might have to spend some time

13 in the Forensic Institute for storage purposes. Do you recall that?

14 A. I do, sir.

15 Q. And do you recall that the family refused that the bodies be

16 stored at the Forensic Institute, that they opposed that suggestion?

17 A. Initially, they did, yes, sir.

18 Q. And then, at the time that you made the note, as followed, you

19 said: "They still carry a huge mistrust of anything Macedonian." Is that

20 correct?

21 A. That's correct, sir.

22 Q. And that accords with your memory of this particular meeting; is

23 that correct?

24 A. Yes, sir.

25 Q. Is that also correct or is it within your knowledge that none of

1 the villagers brought criminal charges against any, anyone for that

2 matter, any member of any ministry or any person that might have been

3 involved in the operation? Are you aware of that?

4 A. I'm not, sir, no.

5 Q. Are you aware of the fact that your colleague, Mr. Szydlik, had

6 suggested to the villagers that they should bring criminal charges?

7 A. I don't remember that, sir, no.

8 Q. There is another matter which I would like to ask, which is

9 related, again, to the issue of security in Macedonia at the time, and in

10 particular in relation to the Ljuboten investigation and Neprosteno

11 investigation.

12 Are you aware of the fact that one of the particular difficulties

13 involved in the investigative process in Macedonia, in relation to these

14 cases, was the absence of a system of witness protection in the country at

15 the time? Are you aware of that?

16 A. Yes, sir.

17 Q. Are you aware also that the Chief Prosecutor Madam Del Ponte

18 raised this particular issue as one of the reasons justifying the deferral

19 of the cases, including Ljuboten, to the jurisdiction of the Tribunal?

20 A. Not specifically.

21 Q. Perhaps, I can assist, if you are good enough to go back to your

22 first binder, Mr. Tucker.

23 And I will ask to you go to tab 26 of this binder. This is Rule

24 65 ter 1D638, and this is, again, the transcript of the deferral hearing

25 of 25th September 2001.

1 A. Yes, sir.

2 Q. And if you can turn to page 6 of this transcript, Madam Del Ponte

3 was asked to explain the reasons or the basis for her application to have

4 these five cases including Ljuboten referred to the jurisdiction of the

5 Tribunal. I will come back on some other aspects of her submissions; but,

6 at this stage, I will draw your attention to the first line of page six.

7 It say this, and those are submissions made by Madam Del Ponte during the

8 hearing: "In Macedonian law, the protection of witnesses is not provided

9 for. It is not provided for in Macedonian law, but that's absolutely

10 vital, essential, for these investigations to be successful."

11 Can you see that?

12 A. Yes I can, sir.

13 Q. And were you aware of those particular statements made by Madam

14 Del Ponte?

15 A. Yes, sir.

16 Q. And if I can ask you to turn to page 34 of that same document,

17 please.

18 A. Yes, sir.

19 Q. At this time, Mr. Tucker, if you look at the previous page those

20 submissions are the submissions of Mr. Dzikov during the same hearing?

21 A. Mm-hm.

22 Q. And Mr. Dzikov said the following, it starts at the top of page

23 34. He said: "I would like to inform you on something else regarding the

24 other two cases, that there were mass graves in the village of Neprosteno

25 and the village of Ljuboten. It is the unknown perpetrators, unidentified

1 perpetrators. We have not identified the perpetrators. I would like to

2 ask you that these two cases are investigated by the prosecution before

3 the competent court, the Tetovo court related to the Neprosteno case,

4 where there is a mass grave, and it is a case against an unidentified

5 perpetrator.

6 "The second case that my esteemed Prosecutor colleague discussed,"

7 if can you turn to the next page "the case of the Ljuboten victim, the

8 second mass graves where also an exhumation has been performed. I inform

9 you, respecting both Article 18 from the Statute and Article 8 from the

10 Rules of Procedure and Evidence, are fully and simultaneously, together

11 with us, we have conducted investigations related to the exhumations, so

12 that we, as authorities, the judicial authorities, made no obstacle to the

13 performance of the investigations by the colleague, Prosecutor."

14 Can you see that?

15 A. Yes, sir.

16 Q. And then Mr. Dzikov goes on to say: "Furthermore, as you have

17 heard in my proposal, we are at the disposal to cooperate before --

18 because it is severe crimes in violations of international humanitarian

19 law. That is all about. I would, once again, like to stress, regarding

20 the victims and the witnesses, as I mentioned, we have no temporary legal

21 protection and, therefore, it could happen that the witnesses and

22 victims as well could be blackmailed or forced, induced not to appear

23 before the Macedonian courts. And for these reasons, in my proposal, I

24 explained what could happen in the future, what could be the fate of the

25 victims and the witnesses and also the cause of the court procedures."

1 Can you see that?

2 A. Yes, sir.

3 Q. And were you aware that Mr. Dzikov had taken a position similar to

4 that of Madam Del Ponte, to the effect that such cases, if tried and

5 prosecuted in Macedonia, could carry serious risks for the victims and

6 witnesses?

7 A. Yes, sir.

8 MR. METTRAUX: And for the record, Your Honour, I will also draw

9 Your Honour's attention to the decision on the Trial Chamber, to the

10 decision on deferral of 4 October 2002, in particular to paragraph 13

11 where those submissions have recorded.

12 JUDGE PARKER: Thank you. And is that now a convenient time.

13 MR. METTRAUX: Absolutely, Your Honour.

14 JUDGE PARKER: We will then adjourn now, to resume at 1.00.

15 --- Recess taken at 12.29 p.m.

16 --- On resuming at 1.03 p.m.

17 JUDGE PARKER: Mr. Mettraux.

18 MR. METTRAUX: Thank you, Your Honour.

19 Q. Mr. Tucker, you will recall that, yesterday, I showed you a number

20 of documents and information that established that the Chief Prosecutor,

21 Madam Del Ponte, had announced that she had opened a formal investigation

22 into the events of Ljuboten on the 9th of November, 2001. Do you recall

23 that?

24 A. I do, sir.

25 Q. And you had indicated, I believe, at the time you were not aware

1 the exact date when that was done; is that correct?

2 A. That's correct, sir.

3 Q. But you were aware, Mr. Tucker, I believe, of the fact that back

4 in November 2001, a team of the Office of the Prosecutors had been set up

5 to look into these two cases. Is that correct?

6 A. At that particular time, there actually wasn't any team set up as

7 such. It was the investigative team leader, Mr. Matti Raatikainen, and

8 myself.

9 Q. Can I ask to you look, perhaps, at your first binder, please,

10 Mr. Tucker, under tab 27. That would be Exhibit 1D35.

11 A. Which tab, sir?

12 Q. 27, please.

13 A. Thank you.

14 Q. And this is -- again, we've seen it already, Mr. Tucker. I don't

15 want to go through the complete text again. This is a record of a meeting

16 with representatives of the OSCE. Do you recall that document?

17 A. Yes, sir, I do.

18 Q. And if I can to you look at the last page of that document and you

19 recall this meeting related to Neprosteno and Ljuboten; is that correct?

20 A. Yes, sir, that's correct.

21 Q. And if I ask you to look at the second paragraph on the last page

22 of that document, there's a statement attributed to your colleague, Dennis

23 Milner, and I will read it tout you. It says this: "Dennis Milner stated

24 that he would recommend a full and open investigation. He stated that one

25 of the investigation teams had already been allocated the responsibility

1 to investigate the issues discussed at this meeting, Team O7, Matti

2 Raatikainen and that senior trial attorney, had been appointed to review

3 the cases under investigation," then a there is a parenthesis saying "AC."

4 Do you agree that the senior trial attorney referred to with an

5 "AC" should be Andrew Cayley?

6 A. Yes, sir, that's correct.

7 Q. You could agree that on the basis of what Mr. Milner said at the

8 time, in fact, an investigation team had been allocated the responsibility

9 to investigate issues discussed at the meeting in question?

10 A. That's correct. And the membership was Matti Raatikainen and

11 myself.

12 Q. And Mr. Cayley?

13 A. And Mr. Cayley as the attorney, yes.

14 Q. And if I ask you to turn to the next document under tab 28 of your

15 binder, that's MFI'd as 1D195.

16 And this is, again, the record of one of those meeting, this time

17 with the then Macedonian minister of the justice. And I would like to

18 draw your attention to the second paragraph of that first page, where

19 Mr. Milner said the following: "Dennis Milner stated that it was his

20 responsibility to assess the current situation in Macedonia related to the

21 investigations into the Neprosteno and Ljuboten. He explained that the

22 ICTY realised that there were more cases than these; but, in respect of

23 them, a dedicated investigation team had been appointed by the Prosecution

24 ICTY to assess the available evidence."

25 So you will agree, Mr. Tucker, once again, that what Mr. Milner

1 says is that, at that stage, a team of the Office of the Prosecutor had

2 been assigned the responsibility to review the material the in your

3 possession in relation to both Neprosteno and Ljuboten. Is that correct?

4 A. That's correct, sir. At that time, as I said, it was the team of

5 myself and Mr. Cayley.

6 Q. And that time would be the 27th of November 2001, when this

7 announcement was made in any case?

8 A. Yes, correct.

9 Q. But you will agree that, although the official announcement of the

10 opening of a formal investigation was made by Madam Del Ponte on the 20th

11 or 21st of November of 2001, in fact, the investigation of the Prosecution

12 and the collection of information by the Office of the Prosecutor had

13 started much earlier than that? Do you agree with that?

14 A. I think on the basis of the documents that you showed my through

15 the course of my examination, that would be true, yes, sir.

16 Q. And if you can recall, you will agree that at least one of those

17 documents was dated the 15th of August of 2001, which would be only a day

18 or two after the events; is that correct?

19 A. Yes, sir.

20 Q. Is that also correct that your investigation into the events of

21 Ljuboten at the time had involved the taking of, or in any case the

22 interviewing of, potential witnesses? Can you recall that?

23 A. At what stage, sir? I'm sorry.

24 Q. Well, perhaps I will specify. Would you agree that as early as

25 the end the month of August 2001, that would be a fortnight after the

1 events, your office had started interviewing potential witness? Do you

2 agree with that?

3 A. Yes. I believe we saw Mr. Raatikainen had interviewed some, I

4 believe.

5 Q. And would you agree that Mr. Raatikainen, in fact, interviewed two

6 such persons: Mr. Fatmir Etemi, an Albanian member of parliament and

7 Mr. Avdil Aliu, a villager from Ljuboten? Do you agree with that?

8 A. Yes, sir.

9 THE INTERPRETER: The interpreter would kindly like to ask the

10 speakers to make pause between questions an answers.

11 MR. METTRAUX:

12 Q. Mr. Tucker, we are not pausing apparently between question and

13 answer, which we can agree to, I believe.

14 Can you agree that the interview which was taken of Mr. Etemi, the

15 member of parliament, was taken by your colleague, Mr. Raatikainen, on the

16 30th of August of 2001 and 1st of September of 2001?

17 A. I don't believe I have seen the document for that so far.

18 Q. Perhaps, I can assist you, Mr. Tucker. If you can turn to tab 2

19 of your binder, number 2, please, it is Rule 65 ter 1D382.

20 And, as you can see, this is a regular or typical OTP witness

21 statement of, in this case, Mr. Fatmir Etemi. And if you can take a look

22 at the date of the interview, you will see it is the 30th of August 2001

23 and the 1st of September 2001; is that correct?

24 A. Yes, sir, that's correct.

25 Q. And if you can look to the next tab, tab number 3, which would be

1 65 ter 1D607, this is a statement of Mr. Avdil Aliu. The date of the

2 interview taken by Mr. Matti Raatikainen was the 31st of August 2001; is

3 that correct?

4 A. Yes, sir, that's correct.

5 Q. And I suppose these two persons were interviewed by the Office of

6 the Prosecutor based or as a result in part of the information which had

7 within available to you prior to that time; is that correct?

8 A. I would assume that to be the case, but I had no involvement or

9 knowledge of that at that time.

10 Q. Perhaps I can assist, Mr. Tucker, in relation to this matter.

11 Would you agree that the belated announcement by the Office of the

12 Prosecutor -- and by "belated," I mean until the end of November 2001.

13 The belated announcement by the Office of the Prosecutor of the

14 commencement of an investigation into the events of Ljuboten was, in part,

15 based on the fact of fear of the reaction that could be triggered in

16 Macedonia after the signing of the Ohrid Framework Agreement; is that

17 something you're familiar with?

18 A. I'm not sure that I would be able to comment on the decision of

19 the Prosecutor to open the investigation, sir.

20 Q. Are you aware of requests, or in any case indications, being given

21 by certain states to your office to the effect that the announcement of an

22 investigation into the events of Ljuboten should be considered very

23 carefully, in view of the fact of the sensitive political situation in the

24 region at that time? Are you aware of that?

25 A. I am, sir. That was raised, if I remember correctly, at some of

1 the meetings that I attended at the end of November 2001.

2 Q. And are aware that, in fact, the matter had been raised earlier on

3 with the Office of the Prosecutor?

4 A. I am, sir.

5 Q. Perhaps, I can assist. If you could look at tab 43 of your

6 binder, Mr. Tucker, please, that would be in the second binder. This is

7 Rule 65 ter 1D649.

8 MR. METTRAUX: Your Honour, could we move into private session. --

9 JUDGE PARKER: Private.

10 [Private session]

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 [Open session]

21 THE REGISTRAR: Your Honours, we're in open session.

22 MR. METTRAUX:

23 Q. Mr. Tucker, I'll go with you through this document briefly. You

24 can see, as I indicated -- have indicated earlier, the origin of this

25 document. Its date is the 24th of August of 2001, a week or so after the

1 events. The subject is ICTY in Macedonia, and the summary is: "Read out

2 on cross Whitehall meeting on role of ICTY in Macedonia way forward with

3 ICTY and Ljuboten incident."

4 Can you see that?

5 A. Yes, sir, I can.

6 Q. And if I can turn to the next page of that document already, and

7 to point 3 in particular, it reads as follows: "Grateful, therefore, if

8 you would make the point in paragraph 4 below to your ICTY contacts. The

9 Whitehall meeting agreed that an ICTY role in Macedonia could be a

10 deterrent. It would be useful if we and others let it be known that ICTY

11 were watching the actions of both sides very carefully. ICTY were clearly

12 going to go ahead with information gathering in Macedonia.

13 "The legal threshold for formally opening an ICTY investigation,

14 widespread and systematic crimes against humanity committed as part of an

15 armed convict, would have to be met if ICTY eventually opened an

16 investigation in and put significant resources into Macedonia. The

17 political consequences of announcing publicly an investigation into

18 Ljuboten would have to be considered carefully if it came to that."

19 Can read this?

20 A. Yes sir.

21 Q. And if I can down a few paragraphs, there is a paragraph starting

22 with the words "However." Can you see that?

23 A. Yes, sir.

24 Q. It says: "However, the situation in Macedonia is extremely tense,

25 delicate political balance at the moment. ICTY will need to think

1 carefully about the impact of any announcements of an investigation on

2 stability in the region. Timing at the moment - just as NATO go in -

3 could be awkward, linking ICTY to the NATO in the minds of outsiders."

4 Can you see that?

5 A. I can, sir.

6 Q. And were you aware at the time of representations of this

7 particular government of any other government to your office in line with

8 these comments?

9 A. No, sir. I think it is fair to say to that the level of this

10 particular document, if it was made public to the Tribunal, would have

11 been to the Prosecutor or that level within the organisation.

12 Q. And when you say the "Prosecutor," that would mean Madam Del

13 Ponte; is that correct.

14 A. Correct.

15 Q. And simply to ask to you look at another paragraph further down in

16 this document: "Given that ICTY's mandate is limited area of sustained

17 armed conflict, have you taken a view on when or whether an armed conflict

18 can be said to have begun in Macedonia."

19 Were you aware of such queries being made by certain government

20 with the office at this time?

21 A. I was not, sir, no.

22 MR. METTRAUX: Your Honour, I would seek to tender this document.

23 MR. SAXON: Your Honour.

24 JUDGE PARKER: Yes, Mr. Saxon.

25 MR. SAXON: It is unclear to the Prosecution just what the

1 relevance of these comments by someone in the government of the United

2 Kingdom are to the issues present in case. I am wondering if my colleague

3 could explain that.

4 JUDGE PARKER: Mr. Mettraux.

5 MR. METTRAUX: Well, Your Honour, perhaps, could the witness be

6 excused, perhaps, for this response.

7 JUDGE PARKER: Would you might waiting just outside the door.

8 THE WITNESS: Not at all, Your Honour.

9 [The witness stands down]

10 JUDGE PARKER: Yes, Mr. Mettraux.

11 MS. METTRAUX:: Thank you, Your Honour.

12 Well, the relevance of this document, Your Honour, is to establish

13 that, contrary to the original evidence of this witness, he has come

14 around to agreeing that the investigation of the Office of the Prosecutor

15 had, in fact, started much earlier than he believed at first. What the

16 Defence submit is that the investigation of the Prosecution started very

17 earlier on in the procedure, as early as perhaps one or two days after the

18 events. What we will indicate at a later stage is that the Prosecution

19 started collecting material, started taking statements from witnesses, and

20 did not in any way share the fruit of this investigative work at any stage

21 with the Macedonian authority.

22 Another issue of relevance is the time at which the Office of the

23 Prosecutor effectively exercised his or her primacy in this matter. And

24 one issue which will be explored with the witness in question is the issue

25 of primacy and when the Prosecutor, in fact, started to take over this

1 investigation.

2 Mr. Saxon was kind enough to indicate prior to the commencement of

3 this hearing that there will be further material closed to us, this in the

4 course of the afternoon, which go in the same direction and which further

5 relate to that matter. And we have reason to -- to believe, again, and my

6 colleague will correct me if I'm wrong, that the effective seizing of the

7 investigation into Ljuboten by the Office of the Prosecutor may have taken

8 place much earlier than what this witness believed originally and what

9 some of the documents may suggest.

10 JUDGE PARKER: Well, how does this particular document have a

11 relevance sufficient to justify its admission.

12 MR. METTRAUX: Your Honour, we believe that the relevance of this

13 is twofold. One, on the one hand, it explains the reason why the

14 Prosecution waited another three months, from August to November of 2001,

15 to effectively announce that she had openly started an investigation. The

16 second one, and we will continue to explore this matter through other

17 documents relating to one, concerns the issue of the armed conflict and

18 the question of government in relation to this matter.

19 Furthermore, and before my colleague can start answering, there's

20 also the indication, Your Honour, about the sensitive or fragile security

21 situation in the country, which is highlighted yet again in this

22 document. That may not be the most important part of that document, since

23 it has been highlighted in many other documents.

24 JUDGE PARKER: Mr. Saxon.

25 MR. SAXON: Your Honour, if there is an issue reflected in this

1 document as to why the Prosecution waited from August to -- from August of

2 2001 to November of 2001 to announce that it had started an investigation,

3 then I think that question needs to be put to this witness. I don't see

4 the relevance of that question emanating from this document.

5 Regarding the issue of armed conflict, we see a question on the

6 bottom of page two in this document referring to the ICTY's mandate

7 limited to areas of sustained armed conflict, and then a question by the

8 author to the reader about the -- whether there was an armed conflict or

9 not in Macedonia. But that is simply a question made by one party to

10 another party, and the Prosecution does not see how that would advance the

11 issues of this case.

12 Regarding the sensitive security situation in Macedonia at this

13 time, what we see here is really in the middle of page 2 a paragraph

14 saying, suggesting that the ICTY will need to think carefully about the

15 impact of any announcement of an investigation on stability in the

16 region. This seems to be, Your Honour, political speculation about

17 political consequences of decisions that might be made by the ICTY, or

18 not. And, in the Prosecution's view, this does not advance the issues

19 raised in this case.

20 [Trial Chamber confers]

21 JUDGE PARKER: The document will be received.

22 MR. METTRAUX: Thank you, Your Honour.

23 THE REGISTRAR: As Exhibit 1D204, Your Honours.

24 JUDGE PARKER: Could we have the witness back, please.

25 [The witness entered court]

1 [Trial Chamber confers]

2 MR. METTRAUX:

3 Q. Mr. Tucker, I apologise for the inconvenience.

4 Going back to the problems that you indicated existed in obtaining

5 the cooperation of the Albanian families or some Albanian families to

6 cooperate with the Macedonian authorities, is that correct that you look

7 for alternative ways to obtain information pertaining to the Ljuboten

8 investigation?

9 A. Yes, sir, that's correct.

10 Q. And these efforts included efforts to obtain ante-mortem datas

11 about the deceased: Is that correct?

12 A. Yes, sir, that's correct.

13 Q. And you obtained that information through and with the assistance

14 of the OSCE; is that correct?

15 A. Yes, sir, that's correct.

16 Q. And one of the other reasons -- you have indicated that one of the

17 reasons for your effort, if I wish to go through the OSCE to obtain such

18 information, was the difficulties for the security forces or the police or

19 other authorities to obtain that sort of the cooperation.

20 Another reason that I put to you is that the security forces at

21 the time were perceived by you - and I mean the Office of the Prosecutor

22 not yourself, Mr. Tucker - but were perceived by your office as having a

23 vested interest, if I wish, in this matter since they had been accused of

24 committing crimes in Ljuboten. Is that correct?

25 A. That's correct. As an additional element as well which with your

1 permission I will say.

2 Q. Certainly?

3 A. I think I referred to it earlier, and that was the belief that if

4 the security forces of Macedonia were used to secure the area for the

5 exhumation, then that in itself might have been confrontational and

6 reactivated the armed conflict.

7 Q. And, in fact, you made a record of this in one of your notes; is

8 that correct?

9 A. That's correct, sir.

10 Q. And if I may ask you to turn to tab 49 of your binder, I would

11 like to show you one of those records. This is the record of a meeting

12 that took place, again, on the 7 March 2002, 1520, Department of Criminal

13 Technology.

14 MR. METTRAUX: I apologise. This is Rule 65 ter 1D662, tab 49.

15 THE WITNESS: Yes, sir.

16 MR. METTRAUX:

17 Q. And, again, this is the meeting with Mr. Uslinovski and

18 Mr. Dzidrovski.

19 And if I can ask you to turn to the second page after that

20 document, and ask you to look at the paragraph which started with the

21 word, "HT stated that he told the judiciary." Can you see that?

22 A. Yes, sir.

23 Q. And you recorded yourself as stating the following: "Howard Tucker

24 stated that he told the judiciary that due to the publicity about this

25 incident, the security forces of Macedonia could feel that they are

1 already implicated in potential offences; therefore, they have a vested

2 interest in the investigation as a whole. The security forces involved in

3 the incident at Ljuboten were under the authority of the Ministry of

4 Interior."

5 Can you recall making that record in your notes?

6 A. Yes, sir, I can.

7 Q. And I think you have just mentioned it. But when contacts became

8 necessary to be made with the villagers, the OSCE was the go-between

9 between yourself and the villagers; is that correct?

10 A. That's correct, sir.

11 MR. METTRAUX: And simply for the record, Your Honour, there are

12 indications of this in tab 32, 33, and 34 of the binder.

13 Q. Is that also correct that in the course of meetings, which you had

14 are the judicial authorities, you asked those authorities to keep the

15 results, the findings of the exhumation and autopsy away from the Ministry

16 of Interior. Do you recall?

17 A. Yes I do, sir.

18 Q. And that was again, Mr. Tucker, I suppose, based on the same

19 concern as was just highlighted in the passage that I read to you. Is

20 that correct?

21 A. That's correct, sir.

22 Q. And you queried the possibility of an order being made by court to

23 that effect, to ensure that the material would not be provided to the

24 Ministry of Interior; is that correct?

25 A. That's correct, sir.

1 Q. Can you recall, during those meetings which you had with the

2 authorities, your colleague, Mr. Milner, indicated on a number of occasion

3 that his view of the investigation, or his view of the manner in which it

4 should be conducted, should be in effect a cooperation between yourself

5 and the Macedonian judicial authorities?

6 A. Yes, sir.

7 Q. And do you recall also that Mr. Milner, during one of those

8 meetings, indicated or highlighted for the judicial authorities the

9 importance for your office, the Office of the Prosecutor, to start

10 collecting material for its own investigation. Do you remember him saying

11 that?

12 A. Not specifically, but I can remember the general -- the general

13 concept.

14 Q. Well, if I can ask you to go back to the first binder, please,

15 I'll ask you to turn to tab 29.

16 MR. METTRAUX: This is it Rule 65 ter 1D612. It is it MFI'd as

17 1D196.

18 A. Yes.

19 Q. Mr. Tucker, this is one of your three meetings of the 27th of

20 November 2001. This one is, again, with Mr. Dzikov, and we have seen it

21 already.

22 I will ask to you look at that last paragraph on that first page,

23 where Dennis Milner, deputy chief of investigations of the ICTY, says

24 this: "Dennis Milner said that it was essential for the ICTY to gather

25 and assess the available information and evidence. Investigators for the

1 Tribunal would work collectively with the Macedonian agencies."

2 Do you recall Mr. Milner saying that?

3 A. Yes, sir, I do.

4 Q. And if I can ask to you look at tab 27 briefly of your binder,

5 this is Exhibit 1D35.

6 Again, Mr. Tucker, this is the record of the meeting with the

7 OSCE, 27 of November, and I'll ask you to turn to the third page and last

8 page of the document. And you will recall earlier on, in the discussion

9 that we've had, I read to you a passage by Mrs. Sandra Mitchell, where she

10 asked you to provide assistance and support to the effort by the

11 Macedonian judicial authorities. Do you recall that?

12 A. Yes, sir, I do.

13 Q. And the response of Mr. Milner to that suggestion by Ms. Mitchell

14 of the OSCE was the following: "DM," Dennis Milner, "stated that he

15 preferred to think of an open cooperation between the Macedonian judicial

16 authorities and the ICTY lawyers." Do you recall him saying?

17 A. Yes, sir.

18 Q. And perhaps you recall also that during some of those meetings an

19 agreement was reached between the judicial authorities and, in particular,

20 Mr. Dzikov, the public prosecutor, on the one hand, and your office on the

21 other, to the effect that a joint team should be formed to investigate

22 this incident. Do you recall that?

23 A. Yes, sir, I do.

24 Q. And, in fact, this team was never set up; is that correct?

25 A. Not to my knowledge. But, of course, as I mentioned earlier,

1 my -- my responsibility ended in about May of 2002 with Macedonia.

2 Q. But you recall Mr. Dzikov expressing disappointment and

3 frustration at the failure of your office to respond to that original

4 agreement?

5 A. Yes, sir.

6 MR. METTRAUX: And if we can turn to tab 54 of the second binder.

7 This is Exhibit 1D75.

8 Q. Mr. Tucker, you will start being familiar with this letter. This

9 is again a letter of Mr. Dzikov to Madam Del Ponte.

10 A. Yes, sir.

11 Q. If I can ask you to turn to the fourth page of that document.

12 A. Yes, sir.

13 Q. And I'll ask you to focus on the paragraph which starts with the

14 words: "In the meeting held on 8 May 2002," that is the last-but-one

15 paragraph. Can you see it?

16 A. I can, sir.

17 Q. And Mr. Dzikov said the following to Madam Del Ponte in this

18 letter: "In the meeting held on 8th May 2002 in Skopje between the Chief

19 Prosecutor of The Hague Tribunal and the public prosecutor of the Republic

20 of Macedonia, it was agreed to form an expert team consisted of six

21 experts who, in the Republic of Macedonia, would contact an adequate team

22 to work in relation to the investigation for which -- investigations for

23 which the Prosecutor of The Hague Tribunal was interested, but for this

24 date we were not informed about forming such a team."

25 Does that accord with your memory, sir?

1 A. It does. However, I know that a Macedonian team was formed by the

2 Office of the Prosecutor in the early part of 2002.

3 Q. But a common team with the members of the Macedonian authorities

4 was never merged into that team; is that correct?

5 A. To my knowledge, that's correct, sir.

6 Q. Is that also correct, Mr. Tucker, that the material which we have

7 seen you had started collecting as early as the 15th of August of 2001

8 was, in fact, never communicated to the Macedonian authorities; is that

9 correct?

10 A. I don't know that, sir.

11 Q. Perhaps I'll ask you more specifically about the two statements

12 that we've seen before, the statement of Mr. Etemi and the statement of

13 Mr. Aliu. Would you agree that these two statements were never provided

14 to the Macedonian authorities. Are you aware of that?

15 A. I don't know that, sir.

16 MR. SAXON: Mr. Saxon.

17 JUDGE PARKER: Yes, Mr. Saxon.

18 MR. SAXON: What is the relevance of these questions?

19 MR. METTRAUX: Well, Your Honour, I think I can answer that in

20 front of the witness this time.

21 The suggestion made by Mr. Tucker on a number of occasion was hat

22 originally the Prosecution was assisting or cooperating with the

23 Macedonian authorities. It is also the Prosecution case that the

24 responsibility within investigating this matter was at least, in part, the

25 responsibility of Mr. Boskoski. The documents in question clearly contain

1 material that would have been relevant to any investigation, regardless of

2 who was responsible to conduct this investigation. What we are

3 highlighting at this moment is the fact that this material was never

4 provided to the competent local authorities, and I make it clear that it

5 is no criticism of Mr. Tucker in any way who had no part in deciding the

6 transmission of this document. The reality is that the Prosecution had

7 access to certain information and material which is, was, and should

8 clearly have been identified as relevant and which was never shared by the

9 Prosecution with the local authorities.

10 MR. SAXON: May I respond, Your Honour?

11 JUDGE PARKER: Of course you can.

12 MR. SAXON: Your Honour, to the Prosecution's knowledge, there is

13 no legal issue at stake in this case regarding any obligation of the

14 Office of the Prosecutor to provide information to the authorities of

15 Macedonia, including, for example, the accused Mr. Boskoski while he was

16 minister.

17 The -- what is -- what is at issue in this case is whether

18 Mr. Boskoski, under Article 7(3), fulfilled his duty to investigate and

19 punish perpetrators of alleged crimes, and so I don't see how these

20 questions about what the Office of the Prosecutor did or did not do, in

21 terms of transferring information back and forth, are relevant.

22 [Trial Chamber confers]

23 JUDGE PARKER: We feel, Mr. Mettraux, having looked at the matter

24 somewhat carefully, that it is not an appropriate line of questioning that

25 is being followed at the present time.

1 MR. METTRAUX: I will simply indicate, perhaps for Your Honours'

2 assistance, that I was about to embark on a related line of questioning

3 which is to the effect that is specific request was made by the local

4 authorities for the support of the Office of the Prosecutor in the

5 provision of material.

6 I agree with Mr. Saxon that the issue in this case is not one of

7 legal obligation or not by the Office of the Prosecutor, and our intention

8 is not to suggest that the Prosecution had in any way an obligation to

9 provide the local authorities.

10 However, what our submissions will be, and we wish to pursue that

11 line of questioning tomorrow, will be that to the extent that a specific

12 request had been made by the local authorities for support and assistance

13 in the form of the provision of documents by the Office of the Prosecutor,

14 which was not acting upon this, had, in effect, a hindering effect on the

15 investigation that was carried out by the local authorities.

16 [Trial Chamber confers]

17 JUDGE PARKER: Our reaction is to see that as a materially

18 different matter from what you have been pursuing in the last few moments.

19 MR. METTRAUX: Then I should have started by the other issue,

20 Your Honour, but I'm grateful.

21 JUDGE PARKER: Yes. But I'm afraid you must do it another day,

22 Mr. Mettraux.

23 We must now adjourn, to continue tomorrow at 9.00.

24 --- Whereupon the hearing adjourned at 1.46 p.m.,

25 to be reconvened on Friday, the 21st day of

1 September, 2007, at 9.00 a.m.

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25