Case No. IT-04-82-PT

IN TRIAL CHAMBER II

Before:
Judge Albin Eser, Pre-Trial Judge

Registrar:
Mr. Hans Holthuis

Order of:
14 October 2005

PROSECUTOR

v.

Ljube BOSKOSKI
Johan TARCULOVSKI

_________________________________________

ORDER CONCERNING SUPPORTING MATERIAL

_________________________________________

The Office of the Prosecutor:

Mr. Dan Saxon
Mr. William Smith

Counsel for the Accused:

Mr. Dragan Godzo for Ljube Boskoski
Mr. Antonio Apostolski for Johan Tarculovski

I, ALBIN ESER, Judge of TRIAL CHAMBER II ("Trial Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal");

NOTING that the initial indictment against the accused Ljube Boskoski ("Boskoski" ) and the accused Johan Tarculovski ("Tarculovski") was reviewed and confirmed on 9 March 2005;¹

NOTING "Decision on Ljube Boskoski’s Motion Challenging the Form of the Indictment" ("Decision") dated 22 August 2005, in which the Trial Chamber ordered the Prosecution to file an amended indictment providing clarification on certain points;

NOTING "Prosecution Motion for Leave to Amend the Original Indictment with Attachments Annex A and B" ("Prosecution Motion") filed on 5 September 2005 and the "Corrigendum to Proposed Amended Indictment" filed on 12 September 2005 by the Office of the Prosecutor ("Prosecution");

NOTING that the Prosecution Motion was filed along with an appended proposed Amended Indictment ("Proposed Amended Indictment") in response to the Decision;

CONSIDERING that the Prosecution’s Proposed Amended Indictment comprises two different types of modifications, namely, changes proposed in conformity with the Decision by the Trial Chamber and amendments newly suggested by the Prosecution;

NOTING "Scheduling Order" issued on 15 September 2005 whereby, in view of the two different types of modifications, I ordered the Defence to file its Response to the Prosecution Motion including both challenges to the filing of the Proposed Amended Indictment amending the Original Indictment and challenges to the form of the Proposed Amended Indictment, if any;

BEING SEISED OF "Defence’s Response to Prosecution’s Motion for Leave to Amend the Original Indictment with Attachments Annex A and B" ("Boskoski’s Response") filed on 29 September 2005 by Boskoski and "Defence Response on Behalf of Johan Traculovski [sic] to the Prosecution’s Motion for Leave to Amend the Original Indictment with Challenges to the Form of the Proposed Amended Indictment" ("Tarculovski’s Response") filed on the same day by Tarculovski;

NOTING "Prosecution’s Reply to the ‘Defence Response for Leave to Amend the Original Indictment’ Filed by Accused Ljube Boskoski" ("Reply") and "Prosecution’s Reply to the ‘Defence Response on Behalf of Johan Traculovski to the Prosecution’s Motion for Leave to Amend the Original Indictment with Challenges to the Form of the Proposed Amended Indictment’" filed on 6 October 2005 by the Prosecution replying Boskoski’s Response and Tarculovski’s Response respectively;

NOTING that in Boskoski’s Response, as an objection to one of the newly suggested amendments within the scope of Rule 50(A)(i)(c) of the Rules of Procedure and Evidence of the Tribunal ("Rules"), he argues that the Prosecution is obliged to provide evidence from which it can be inferred that armed conflict existed in FYROM during the modified period, "from January until at least late September 2001",² as the Prosecution previously asserted in the Original Indictment that a state of armed conflict had existed in FYROM "[a]t all times relevant to [the] indictment";³

NOTING that the Prosecution responds in its Reply that the alteration referred to by Boskoski is not a substantive change made by the Prosecution in the Original Indictment,⁴ and that it is the result of the Prosecution’s attempt to "clarif[y] the duration of the time that the armed conflict continued", by "harmonis[ing] the two unclear pleadings" which Judge Agius once pointed out, namely, one pleading that a state of armed conflict existed at all times relevant to the indictment and the other pleading that the conflict formally ended on 13 August 20001 with the signing of the Ohrid peace agreement;⁵

NOTING that the relevant part in paragraph 52 of the Original Indictment reads: "The armed conflict began in January 2001 and continued until August 2001. … The conflict formally ended on 13 August 2001 with the signing of the Ohrid peace agreement";

NOTING that the relevant part in paragraph 52 of the Proposed Amended Indictment reads: "The armed conflict began in January 2001 and continued until at least late September 2001. … On 13 August 2001 the Ohrid peace agreement was signed between the two parties";

NOTING that the Prosecution, in paragraph 52 of the Proposed Amended Indictment, now alleges that "the armed conflict began in January 2001 and continued until at least September 2001", instead of its previous assertion that it continued "until August 2001", and FURTHER CONSIDERING that the relevant indictment concerns the events that took place in August 2001, in relation to the Prosecution’s earlier contention in paragraph 43 of the Original Indictment that a state of armed conflict existed in FYROM "at all times relevant to [ the] indictment";

CONSIDERING that even if the Prosecution did not mean from the outset that the armed conflict had ended exactly at the conclusion of the Ohrid peace agreement on 13 August 2001 as once doubted by Judge Agius,⁶ the modified period "from January until at least late September 2001" differs from its previous contention on the period of the armed conflict, adding at least the month of September to it, and that this results in an expansion of the duration of the armed conflict rather than a mere clarification of the duration,

CONSIDERING that Rule 50(A)(ii) of the Rules provides that "leave to amend an indictment shall not be granted unless the Trial Chamber or Judge is satisfied there is evidence which satisfies the standard set forth in Article 19, paragraph 1, of the Statute to support the proposed amendment[s]", i.e., leave to amend shall be denied if the material provided does not meet the prima facie standard;⁷

CONSIDERING therefore that the Trial Chamber requires the assistance of the Prosecution in order to be directed to or provided with relevant supporting material as regards the concerned amendments;

PURSUANT TO Rule 50(A)(ii) of the Rules;

HEREBY ORDER the Prosecution to:

1. direct the Trial Chamber, no later than 18 October 2005, to the location in the submitted supporting material files, of material that the Prosecution believes establishes the prima facie case as to the existence of a state of armed conflict during the period the Prosecution added; OR

2. file material supporting the concerned amendments no later than 18 October 2005, if the already submitted files of supporting material do not contain such material.

Done in English and French, the English version being authoritative.

Dated this fourteenth day of October 2005,
At The Hague
The Netherlands

________________________
Judge Albin Eser
Pre-Trial Judge

[Seal of the Tribunal]