Case No. IT-04-82-PT

IN TRIAL CHAMBER II

Before:
Judge Albin Eser, Pre-Trial Judge

Registrar:
Mr. Hans Holthuis

Order of:
3 November 2005

PROSECUTOR

v.

Ljube BOSKOSKI
Johan TARCULOVSKI

ORDER ON DEFENCE MOTION FOR PRODUCTION OF DOCUMENTS PURSUANT TO RULE 54 bis

The Office of the Prosecutor:

Mr. Dan Saxon
Mr. William Smith
Mr. Anees Ahmed

The Former Yugoslav Republic of Macedonia

The Embassy of the Former Yugoslav Republic of Macedonia
The Hague; The Netherlands

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");

BEING SEISED OF "Defence Motion for Production of Evidence and Information and Assistance for Witness Summoning" ("Motion") filed on 20 October 2005 by the accused Johan Tarculovski ("Accused"), in which he requested the Trial Chamber to order the Government of the Former Yugoslav Republic of Macedonia ("FYROM") to provide him with documents and information necessary for the preparation of his defence, and also with assistance with the summoning of potential witnesses;

NOTING "Prosecution’s Response to the ‘Defence Motion for Production of Evidence and Information and Assistance for (sic) Witness Summoning’ Filed by Accused Johan Tarculovski" ("Response") filed on 31 October 2005 by the Office of the Prosecutor ("Prosecution");

NOTING that Rule 54 of the Rules of Procedure and Evidence of the Tribunal ("Rules") provides, inter alia, that at the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial;

NOTING that Rule 54 bis of the Rules provides, inter alia, that a party requesting an order under Rule 54 that a State produce documents or information shall apply in writing to the relevant Judge or Trial Chamber and shall (1) identify as far as possible the documents or information to which the application relates; (2) indicate how they are relevant to any matter in issue before the Judge or Trial Chamber and necessary for a fair determination of that matter; and (3) explain the steps that have been taken by the applicant to secure the State’s assistance;

CONSIDERING that while the Accused, in his Motion, explains the steps he undertook to ensure the assistance of the Government of the FYROM, including a meeting with, and letters to, the authorities of the FYROM,¹ he has not provided the Trial Chamber with any evidence to prove those steps, for instance, minutes of the meeting and copies of the letters, and that without such evidence, the Trial Chamber is unable to verify if the alleged steps were in fact taken;

CONSIDERING FURTHER that in relation to the Accused’s request for assistance with the summoning of witnesses, his Motion neither specifies which role or roles he thinks the Government of the FYROM should take in assisting him, nor does it indicate with respect to which witnesses he needs such assistance, and that without such clarification or details, the Trial Chamber is not in a position to make any decision regarding this request;

CONSIDERING that the co-operation of the Government of the FYROM with the Tribunal and the parties to the present case in this matter is indispensable for the preparation of trial, inter alia, in view of the accelerated schedule of the proceedings, and that in this regard, the Government of the FYROM needs to be informed of the Accused’s Motion and the Prosecution’s Response thereto;

PURSUANT TO Rule 54 and Rule 54 bis of the Rules;

HEREBY ORDER the Accused, no later than 10 November 2005, to:

1. submit material that potentially proves the steps he took to secure the assistance of the Government of the FYROM, such as minutes of the meeting and copies of the letters mentioned in the Motion; and

2. provide clarification and details with regard to his request for the assistance of the Government of the FYROM with the summoning of potential witnesses;

INSTRUCT the Registry of the Tribunal to serve the relevant authorities of the FYROM with his Motion and the Prosecution’s Response thereto;

INVITE the Government of the FYROM to provide the Accused with the documents and information he requested and to inform the Trial Chamber accordingly, OR, should it not be in a position to positively answer in whole or in part to the Accused’s request, to submit in writing to the Trial Chamber a response to his request stating its reasons for being unable to produce all or part of such documents or information no later than 17 November 2005; and

FURTHER INVITE the Government of the FYROM, also no later than 17 November 2005, to respond to the Accused’s request for assistance with the summoning of potential witnesses in the above-mentioned response.

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

Dated this third day of November 2005,
At The Hague
The Netherlands

________________________
Judge Albin Eser
Pre-Trial Judge

[Seal of the Tribunal]