110819ID

Page 43

1 Friday, 19 August 2011

2 [Initial Appearance]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 10.33 a.m.

6 JUDGE ORIE: Good morning to everyone in and around this

7 courtroom.

8 Madam Registrar, would you please call the case.

9 THE REGISTRAR: Good morning, Your Honour. This is case number

10 IT-04-84-R77.1, the Prosecutor versus Shefqet Kabashi.

11 JUDGE ORIE: Thank you, Madam Registrar.

12 Could I have the appearances from the parties.

13 Prosecution first.

14 MR. MARCUSSEN: Good morning, Your Honour. My name is

15 Mathias Marcussen, and I am appearing today with Ms. Priya Gopalan and

16 Mr. Colin Nawrot as our case manager.

17 JUDGE ORIE: Thank you, Mr. Marcussen.

18 For the Defence.

19 MR. KARNAVAS: [Microphone not activated]

20 Good morning, Mr. President. Michael Karnavas on behalf of

21 Mr. Kabashi and good morning to everyone in and around the courtroom.

22 JUDGE ORIE: Thank you, Mr. Karnavas.

23 Mr. Kabashi, could I first check that you're able to follow the

24 proceedings in the language you understand?

25 THE ACCUSED: [Interpretation] Yes.

Page 44

1 JUDGE ORIE: If at -- [B/C/S on English channel]

2 There is apparently a problem because I do not have --

3 [B/C/S on English channel]

4 THE INTERPRETER: Can you hear us, Your Honour?

5 Yes, I can hear you but I receive translation in another language

6 on channel 4 as well. And from the body language of other participants

7 in these proceedings, it seems to be the same.

8 Yes. Let's check again.

9 Mr. Kabashi, if at any time you're not receiving interpretation

10 or if it is difficult for you to hear the interpretation, don't hesitate

11 to let me know without delay.

12 THE ACCUSED: [Interpretation] Okay.

13 JUDGE ORIE: Then I would like to invite you to state your full

14 name for the record.

15 THE ACCUSED: [Interpretation] Shefqet Kabashi.

16 JUDGE ORIE: And what is the date and place of birth?

17 THE ACCUSED: [Interpretation] The 1st of July, 1976, Zahac, Peje,

18 Kosova.

19 JUDGE ORIE: Thank you, Mr. Kabashi.

20 Mr. Kabashi, have the authorities of the country of which you are

21 a national, have they been informed about your transfer to and your

22 detention now in the United Nations Detention Unit of the Tribunal in The

23 Hague?

24 THE ACCUSED: [Interpretation] I did not understand. What do you

25 mean?

Page 45

1 JUDGE ORIE: Have the authorities of the country of which you are

2 a national, to your knowledge, have they been informed about your present

3 situation, that is, being detained at the United Nations Detention Unit?

4 THE ACCUSED: [Interpretation] I don't know.

5 JUDGE ORIE: Then --

6 THE ACCUSED: [Interpretation] I have no knowledge of it.

7 JUDGE ORIE: Then I'll ask the Registry to assist you in

8 establishing communication, if you wish to do so, and at least to inform

9 the authorities of the country of which you are a national about your

10 present situation.

11 Further, did you have an opportunity to inform your family about

12 your arrest and about your present detention?

13 THE ACCUSED: [Interpretation] Yes, yes.

14 JUDGE ORIE: Mr. Kabashi, this initial appearance today is

15 governed by Rule 62 of the Rules of Procedure and Evidence, and the

16 purpose of it is to inform you of the charges against you and to ask you

17 to enter a plea and also to verify that your right to counsel is

18 respected.

19 Now, before I will set out the allegations that were brought

20 against you, I inform you already now that you have a fundamental right

21 to remain silent in these proceedings. Further, Articles 20 and 21 of

22 the Tribunal's Statute address the commencement and the conduct of trial

23 proceedings and the rights you have as an accused in those proceedings.

24 Your counsel will further advise you on these rights and procedures if

25 you need any further information.

Page 46

1 Mr. Karnavas, have you discussed this matter already with

2 Mr. Kabashi?

3 MR. KARNAVAS: Yes, Your Honour. In fact, we've met extensively.

4 He was fully informed before leaving the United States that upon arrival

5 he would be arrested and that he would be brought before a Dutch court,

6 and thereafter he would be brought to the UNDU. He was also advised of

7 today's procedure, and I can speak for him that he will remain silent.

8 We will not enter a plea today. As I understand it, we have some time

9 before that, and he is scheduled to testify in another matter and I was

10 going to be making a request concerning that, that the testimony take

11 place on Monday as opposed to today because he's been bounced around from

12 one place to another without having access to his lawyer.

13 JUDGE ORIE: Yes. Thank you for that information.

14 The operative indictment against you, Mr. Kabashi, is dated the

15 18th of February, 2008. You were arrested this week, Wednesday, the 17th

16 of August, 2011, you were arrested in the Netherlands and you were

17 subsequently transferred to the Tribunal on the 18th of August, that was

18 yesterday. Mr. Kabashi, have you received a copy of the indictment in

19 your own language?

20 THE ACCUSED: [Interpretation] I don't know. Maybe I have. I

21 have been given something by my counsel today, but I haven't had the time

22 to look into it.

23 JUDGE ORIE: Then perhaps under those circumstances it would be

24 best that the ...

25 [Trial Chamber and Registrar confer]

Page 47

1 JUDGE ORIE: I was informed, Mr. Kabashi, that when you met with

2 the Registrar yesterday that a copy of the indictment in your own

3 language was handed out to you. Does this refresh in any way your memory

4 and have you read the document that was -- which is reported to me as

5 having been handed out to you yesterday, that the indictment, just to say

6 briefly, describes the events and what you are charged with, that is that

7 you consciously failed to answer questions that were put to you as a

8 witness?

9 THE ACCUSED: [Interpretation] I did receive some papers

10 yesterday. I did not have the time to look into them. Your Registrars

11 were not able to speak English well enough or any other language that I'd

12 understand. As a matter of fact, I was not capable of having a proper

13 conversation with them. They said they were from the Registry and I was

14 still handcuffed at the time when they were having this conversation with

15 me, so I did not deem it to be significant enough.

16 JUDGE ORIE: Under those circumstances -- but I perhaps first ask

17 you whether you have discussed with counsel the charges that were brought

18 against you? Irrespective of whether you've read the document or not,

19 have you discussed with Mr. Karnavas what the charges against you are?

20 THE ACCUSED: [Interpretation] Yes, we have.

21 JUDGE ORIE: Now, Mr. Kabashi, we have two options. We can read

22 the indictment in its entirety to you, and you have a right to have it

23 read to you. Do you want the indictment to be read out or would you be

24 satisfied if I just very summarily inform you about what the charges are?

25 THE ACCUSED: [Interpretation] You may give me a summary, largely

Page 48

1 because given that this document is in my detention room I will be able

2 to read it later.

3 JUDGE ORIE: Yes. And you have discussed the charges with

4 Mr. Karnavas?

5 THE ACCUSED: [Interpretation] Yes, we have discussed them, and I

6 think we will have plenty of opportunity to do so again.

7 JUDGE ORIE: Yes.

8 Mr. Karnavas, under those circumstances I would suggest that I

9 very briefly summarise the charges brought against Mr. Kabashi.

10 Also not only for Mr. Kabashi but also to the benefit of the

11 public.

12 Mr. Kabashi, you are charged with two counts of contempt of the

13 Tribunal under Rule 77 of the Rules because you have - and that's the

14 charge - have contumaciously refused or failed to answer questions as a

15 witness in the case of the Prosecutor versus Haradinaj et al. and this

16 would have happened in June 2007 when you were present in -- before this

17 Tribunal here in The Hague. And the second count is similar, refusal or

18 failure to answer questions as a witness in that same case in November

19 2007. In November 2007 you appeared through videolink before this

20 Tribunal, where you were physically in another country.

21 These are the charges that were brought against you.

22 Mr. Karnavas, would you like me to go into any further detail or

23 would this be a sufficient summary?

24 MR. KARNAVAS: That would be sufficient, Your Honour.

25 JUDGE ORIE: Yes. Thank you, Mr. Karnavas.

Page 49

1 Mr. Kabashi, pursuant to Rules 77(E) and 62(A)(iii) of the Rules

2 of Procedure and Evidence, you will be called upon to enter a plea of

3 guilty or not guilty on each of these two counts in the indictment within

4 ten days of this initial appearance. Although you may express a wish to

5 enter a plea today, I understand from the words Mr. Karnavas spoke that

6 you prefer to enter a plea later and not today. Is that well understood?

7 THE ACCUSED: [Interpretation] Yes.

8 JUDGE ORIE: Then, as I said before, you will be called upon to

9 enter a plea within ten days of this initial appearance.

10 And, Mr. Karnavas, that will most likely be on the 26th of

11 August, which is next week, Friday, so in a week from now. And the time

12 as provisionally scheduled is 12.00, therefore at noon. Does that cause

13 you any problem?

14 MR. KARNAVAS: That will be fine.

15 JUDGE ORIE: That will be fine.

16 MR. KARNAVAS: Fine.

17 JUDGE ORIE: Thank you.

18 Mr. Kabashi, meanwhile you will remain in custody at the

19 United Nations Detention Unit and Mr. Karnavas can inform you, give you

20 any information about the Rules governing your detention.

21 Then I would like to briefly address the Prosecution. I would

22 like to remind you, Mr. Marcussen, that pursuant to Rules 77(E) and

23 66(A)(i) of the Rules of Procedure and Evidence, that within ten days of

24 the initial appearance, so that's today, initial appearance of the

25 accused, that you should make available to the Defence, in a language

Page 50

1 which the accused understands, all the supporting material which

2 accompanied the indictment when the confirmation was sought. I would

3 even suggest that if the material is ready that you disclose this

4 material already today so as to better enable Mr. Karnavas and

5 Mr. Kabashi to prepare for next week.

6 MR. MARCUSSEN: Thank you, Your Honour. I believe that shouldn't

7 pose any problem.

8 JUDGE ORIE: Okay.

9 Then addressing the Defence, Mr. Karnavas, perhaps unnecessary,

10 but I'd like to remind you that pursuant to Rules 77(E) and 72(A) of the

11 Rules of Procedure and Evidence that you will have a ten-day period for

12 filing any preliminary motions once you have received all the supporting

13 material, therefore likely on from today. These preliminary motions

14 include motions which challenge the jurisdiction of the Tribunal or

15 allege defects in the form of the indictment.

16 Mr. Kabashi, you are advised to consult on these matters with

17 Mr. Karnavas.

18 Mr. Karnavas, could you give us already any idea on whether

19 there's any developed thought on filing such preliminary motions?

20 MR. KARNAVAS: Your Honour, I don't believe that there will be

21 any extensive filing, if any filing at all, concerning these matters.

22 Obviously we're here, we recognise the jurisdiction of the Tribunal, we

23 understand what the charges are. We -- I have seen and looked at the

24 indictment, so I'm satisfied that --

25 JUDGE ORIE: Yes, you say "as matters stand now" you have not

Page 51

1 developed any plans to file such a preliminary motion, although you still

2 have time to consider it further if you wish of course.

3 MR. KARNAVAS: All right.

4 JUDGE ORIE: Well, I think we've dealt with most, if not all, of

5 the issues apart from one, Mr. Karnavas. But before I give you an

6 opportunity to raise it, I would first like to ask the Prosecution

7 whether there's any matter they would like to raise at this moment.

8 MR. MARCUSSEN: No, Your Honour, there's not. Thank you.

9 JUDGE ORIE: Yes.

10 And before I give you an opportunity, Mr. Karnavas, I would first

11 like to ask Mr. Kabashi whether he himself wants to raise any matter

12 apart from the matter you indicated you would raise in a minute.

13 THE ACCUSED: [Interpretation] No.

14 JUDGE ORIE: Then, Mr. Karnavas, you already told me that you

15 would like to raise the scheduling of the appearance of Mr. Kabashi as a

16 witness in another case. I will give you an opportunity to further raise

17 this matter, but the first thing that came to my mind is whether I have

18 any competence to decide on timing of appearance as a witness in a case

19 in which I'm not involved.

20 MR. KARNAVAS: You have no competence, but nonetheless I would

21 like the record to be made because at some point when this hearing

22 finishes I will be meeting with the Prosecution and hopefully we will --

23 I have also informed, I should say, the Defence yesterday that it would

24 be my wish for Mr. Kabashi to testify on Monday and that I was going to

25 make the Prosecution be aware of that. And of course we need now bring

Page 52

1 that to the attention of the Trial Chamber so that they would be aware.

2 But simply for the record, when Mr. Kabashi came, knowing that he

3 would be arrested - and I had been in touch with the Dutch authorities

4 prior to that, a Dutch prosecutor who was extremely co-operative and

5 seemed to know exactly what the procedure was - our expectation was that

6 he would leave from the airport and go immediately to a Dutch court and

7 thereafter he would immediately go to the UNDU. That did not occur

8 because apparently an investigative judge thought that research needed to

9 be done, and in fact even yesterday when we had this unexpected hearing,

10 because we weren't supposed to even appear before a court until this

11 morning, in a Dutch court, there was some indication that he could be let

12 out on custody by the Dutch. So in any event, then I was told he was

13 coming here yesterday immediately to the Tribunal, I assume for his

14 initial appearance. I rushed over here, found out that he went to the

15 UNDU, and then we got -- and then my appointment wasn't arranged until

16 later and then we had the Scheduling Order.

17 Be that as it may, I have not had any contact, any real contact,

18 with Mr. Kabashi, other than seeing him a little bit at the police

19 headquarters, in order to go over the material. Therefore -- and that's

20 why I want the record to be very clear that while we appeared before this

21 Tribunal at the earliest possible moment, I have not had access to

22 Mr. Kabashi to prepare him, and I think it would be fundamentally unfair

23 for him to go in court this afternoon to give evidence, considering that

24 depending on his performance in that proceeding it may impact the

25 situation before us -- before this particular proceeding.

Page 53

1 JUDGE ORIE: Yes.

2 MR. KARNAVAS: So given that, I would like my client to be in the

3 best frame of mind, be prepared, and of course hopefully get everything

4 resolved within an expeditious manner.

5 JUDGE ORIE: Yes. Mr. Karnavas, of course I fully understand all

6 your considerations. As you agreed with me in the beginning, I have no

7 competence whatsoever to deal with the matter. The only thing I could do

8 is to ask the Registry to make a copy of the transcript of what you just

9 said, and of course that is not a way of introducing a matter before

10 another Chamber but it may at least assist you in presenting those

11 matters before that other Chamber, whether or not after having discussed

12 the matter with the Prosecution, Defence in that other case, I refrain

13 from that.

14 But, Madam Registrar, if it would be possible to have a printed

15 copy of what Mr. Karnavas just said to be given to your colleagues who

16 serves as a representative of the Registry in that other case. I'm not

17 competent to say to whose attention he or she should bring it, and if

18 it's you, then hand it out to yourself and see what to do with it as you

19 deem fit.

20 [Trial Chamber and Registrar confer]

21 JUDGE ORIE: We briefly move into private session.

22 MR. KARNAVAS: May I be seated, Your Honour?

23 JUDGE ORIE: Yes.

24 [Private session]

25 (redacted)

Page 54

11 Page 54 redacted. Private session.

Page 55

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 [Open session]

22 THE REGISTRAR: Your Honour, we're back in open session.

23 JUDGE ORIE: Thank you, Madam Registrar.

24 Mr. Karnavas, is there any other matter you would like to raise?

25 MR. KARNAVAS: Nothing, Your Honour.