Page 57
1 Friday, 26 August 2011
2 [Further Appearance]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 11.59 a.m.
6 JUDGE ORIE: I look at the clock, and say a good afternoon to
7 everyone in and around this courtroom.
8 Madam Registrar would you please call the case.
9 THE REGISTRAR: Good afternoon, Your Honour.
10 This is the case number IT-04-84-R77.1, The Prosecutor versus
11 Shefqet Kabashi.
12 JUDGE ORIE: Thank you, Madam Registrar.
13 Could I have the appearances.
14 Prosecution first.
15 MS. KORNER: Good afternoon, Your Honours. Joanna Korner,
16 together with Alma Imamovic-Ivanov, for the Prosecution.
17 JUDGE ORIE: Thank you and for the Defence of Mr. Kabashi.
18 MR. KARNAVAS: Good afternoon, Your Honour. Michael Karnavas for
19 Mr. Kabashi.
20 JUDGE ORIE: Thank you. Mr. Karnavas, I see that Mr. Kabashi is
21 present in this courtroom as well.
22 Mr. Kabashi, during the Initial Appearance on 19th of August of
23 this year, you did not enter a plea on the counts of the indictment.
24 Instead you chose to defer your plea, as provided for by the Rules. And
25 it is for this purpose that the Chamber has scheduled today's hearing.
Page 58
1 Mr. Kabashi, you'll recall that at the Initial Appearance you
2 waived your right to have the indictment read to you and that I, for the
3 benefit of the public, read a summary. I will now read to you the
4 charges, and then I will ask you for each charge: How do you plead?
5 Guilty or not guilty. And your answer in reach case should be guilty or
6 not guilty as the case may be.
7 Madam Registrar will then carefully record any pleas entered by
8 you, Mr. Kabashi.
9 The charges against you concern two incidents of having
10 contumaciously failed or refused to answer questions when you appeared as
11 a witness.
12 I would like to invite you to stand.
13 Mr. Kabashi, under Count 1, are you charged with contempt of the
14 Tribunal, pursuant to 77(A)(i) and 77(G) of the Rules, committed on the
15 5th of June, 2007 when you appeared as a witness in the case of The
16 Prosecutor versus Haradinaj et al. here in The Hague.
17 How do you plead, guilty or not guilty?
18 THE ACCUSED: [Interpretation] Guilty.
19 JUDGE ORIE: Under Count 2, Mr. Kabashi, you are charged with
20 contempt of the Tribunal, pursuant to Rules 77(A)(i) and 77(G) of the
21 Rules, committed on the 20th of November, 2007, when you appeared as a
22 witness in the case of The Prosecutor versus Haradinaj et al. via a
23 video-conference link.
24 How do you plead? Guilt or not guilty?
25 THE ACCUSED: [Interpretation] Guilty.
Page 59
1 JUDGE ORIE: Please be seated, Mr. Kabashi.
2 Madam Registrar, would you please record that Mr. Kabashi plead
3 guilty on both Counts.
4 Mr. Kabashi, with regard to your guilty pleas, the Trial Chamber
5 will further consider whether all requirements of the guilty plea are met
6 to make a finding on your guilt. We have reserved a courtroom for this
7 afternoon for a further hearing on this.
8 Before we continue, could I inquire with the parties whether
9 there is any plea agreement concluded between the parties?
10 MS. KORNER: No, Your Honour. There's no plea agreement.
11 JUDGE ORIE: Then it takes two for an agreement, Mr. Karnavas, so
12 I make take it that you are of a similar position?
13 MR. KARNAVAS: That's correct, Your Honour. I did want to point
14 one matter which was brought to my attention by the Office of the
15 Prosecution; that is, on the record, to inquire whether Mr. Kabashi has
16 any objections to you sitting --
17 JUDGE ORIE: I'll raise that matter myself.
18 MR. KARNAVAS: Okay.
19 JUDGE ORIE: -- Mr. Karnavas. So, therefore, perhaps you wait
20 until what I say about it, and then, of course, can you comment on it.
21 MR. KARNAVAS: Apologies.
22 JUDGE ORIE: Yes.
23 Now, just based on an assumption, let's just assume that the
24 Chamber would accept the guilty plea and would make a finding of guilt
25 later this afternoon, would the parties be ready to already make
Page 60
1 submissions on sentencing this afternoon.
2 MS. KORNER: Yes. We would, Your Honours -- we were on the basis
3 of the information that Mr. Karnavas was kind enough to provide
4 anticipating Mr. Kabashi's pleas today. We can deal with opening the
5 case very shortly, and any submissions on sentence which will be very
6 straightforward. We, the Prosecution, make no submissions other than to
7 say that any custodial sentence should reflect the gravity of the charge.
8 We've looked at the authorities. We think it's a matter for the Trial
9 Chamber.
10 JUDGE ORIE: Thank you, Ms. Korner, for that.
11 May I then take it that you'll not call any further evidence in
12 relation to sentence? Witnesses or documentary evidence.
13 MS. KORNER: That's correct, Your Honours.
14 JUDGE ORIE: Mr. Karnavas, could I hear your position in respect
15 of a possible hearing of sentencing submissions later this afternoon,
16 and, again, I cannot anticipate on the outcome of the Chamber on the
17 acceptance of the guilty plea, but just on the basis of an assumption
18 that, if it would be accepted, whether you'd be ready to make sentencing
19 submissions.
20 MR. KARNAVAS: Fully ready, Your Honour.
21 JUDGE ORIE: May I also then take that do you not intend to call
22 any witnesses or to present any documentary evidence which --
23 MR. KARNAVAS: As far as documentary evidence, Your Honour, the
24 only thing that I have provided thus far were the medical records. For
25 the consideration of the Bench should they wish to review them.
Page 61
1 JUDGE ORIE: Yes.
2 MR. KARNAVAS: And the Prosecution --
3 JUDGE ORIE: They have been disclosed --
4 MR. KARNAVAS: -- has them as well.
5 JUDGE ORIE: -- to the Prosecution.
6 MR. KARNAVAS: They're always copied, Your Honour. In fact, they
7 had them before you had them.
8 Secondly, there may be a possibility -- it's a possibility that
9 there would one brief witness which would be the brother who would speak
10 as a character witness; although, I have yet to make that final
11 determination.
12 JUDGE ORIE: And that witness is available this afternoon --
13 MR. KARNAVAS: He's here. He's here.
14 JUDGE ORIE: -- if would you decide to call him.
15 MR. KARNAVAS: He's here in The Hague. He's here in the
16 Tribunal. He is the brother that came with Mr. Kabashi from New York and
17 has been waiting for these proceedings.
18 So it is our anticipation that we would go forward. It is rather
19 straightforward and, of course, we would be looking forward to a final
20 disposition today.
21 JUDGE ORIE: Yes. Of course I cannot anticipate --
22 MR. KARNAVAS: I understand you can't guarantee --
23 JUDGE ORIE: No, not only not guarantee, I cannot in any way
24 anticipate on whether my colleagues and I would be in a position to even
25 make up or mind today let alone to -- to pronounce a Judgement in court.
Page 62
1 But --
2 MR. KARNAVAS: I understand, but I just wanted to bring it to
3 your attention so perhaps you and your colleagues will know that in
4 advance.
5 JUDGE ORIE: Yes, that it would -- that you would be pleased if
6 you would know the Judgement today. That's --
7 MR. KARNAVAS: Yes.
8 JUDGE ORIE: Yes. That is clear.
9 Is there any other matter before I make a brief statement? The
10 Prosecution or the Defence. Or you, Mr. Kabashi, would like to raise?
11 And, again, Mr. Karnavas, that issue you touched upon already I
12 will deal with that after I have given you an opportunity to raise any
13 other matter.
14 MS. KORNER: Your Honour, we have no submissions thank you.
15 JUDGE ORIE: Thank you.
16 MR. KARNAVAS: Nothing, Your Honour.
17 JUDGE ORIE: Mr. Kabashi. Nothing further. I see you're nodding
18 no.
19 THE ACCUSED: [Interpretation] No, thank you.
20 JUDGE ORIE: Then, as announced, I will -- although that's quite
21 unusual, I will briefly address the question of my own impartiality for
22 the proceedings that will follow, and most likely already this afternoon.
23 The Chamber has been made aware of the fact that the Prosecution
24 has shared some thoughts with the Defence on potential problems with
25 charges or challenges to the impartiality of the Judges on this Bench.
Page 63
1 Triggered by this exchange of views, which I am aware of, I decided to
2 make the following statement.
3 First of all, can I only speak for myself. I have considered
4 whether I would have to recuse myself because of the initial steps taken
5 in respect of the investigation and the prosecution of Mr. Kabashi such
6 as issuing an order in lieu of an indictment. The Grand Chamber of the
7 European Court on Human rights decided the case Kyprianou versus Cyprus
8 on the 15th of December 2005. It appears from the submissions of
9 governments that intervened in that case that the common law tradition
10 has widely accepted a role for judges to adjudicate contempt cases if the
11 contempt was committed in court before those same judges. The European
12 court - and I'm now referring to the Grand Chamber - has, unlike the
13 Chamber that first heard the application by Mr. Kyprianou, has
14 intentionally not ruled on the compatibility of that role with the
15 requirement of an independent and impartial court under Article 6(1) of
16 the European Convention. It even declared it undesirable to do so. The
17 decision on the complaint by Mr. Kyprianou was focussing very much on the
18 circumstances of that case. And I read just two lines which may be
19 relevant for this.
20 The Grand Chamber said:
21 "The present case relates to contempt in the face of the court
22 aimed at the judges personally. They had been the direct object of the
23 applicant's criticism as to the manner in which they conducted the
24 proceedings."
25 Unnecessary to emphasise that we do not find ourselves in a
Page 64
1 similar situation.
2 In the Rules of Procedure and Evidence of this Tribunal, more
3 specifically, Rules 77(C) and 77(D), Judges have been given authority and
4 responsibility to adjudicate indicate and even prosecute contempt cases
5 very much in line with the common law tradition. I am bound by the
6 system adopted by the Plenary of judges and I cannot decide that this
7 system adopted by many jurisdictions and not declared inconsistent with
8 the requirement of an impartial court, by the European Court of Human
9 Rights, that that system should not be applied unless I would myself be
10 convinced that I lack the required impartiality in this case.
11 I add to this that the present case distinguishes itself from the
12 Hartmann case in the sense that in that case the contempt charged was not
13 contempt in the face of court but committed out of court.
14 I further have considered that a Judge should not recuse himself,
15 and especially not in this Tribunal where the number of Judges is
16 limited, unless there are good reasons to do so. It is on the basis of
17 all these considerations that I concluded that I should not recuse
18 myself.
19 If any of the parties would take a different position in respect
20 of my independence and my impartiality in this case, I would expect them
21 to make an application under Rule 15(B)(i), and I again emphasise that I
22 have spoken for myself and not on behalf of any of my colleagues in this
23 case.
24 This is the statement I would like to make. Again, if I say I
25 would expect them to make an application under Rule 15(B)(i) it would
Page 65
1 certainly be convenient to know if you are considering to make such an
2 application in respect of me as Presiding Judge in this case.
3 MS. KORNER: Your Honour, we are not.
4 MR. KARNAVAS: Had we, one would have been made a long time ago.
5 JUDGE ORIE: Thank you for that, Mr. Karnavas.
6 This concludes this --
7 MS. KORNER: Your Honour, I'm so sorry to -- before Your Honour
8 rises. I now it's unusual and it may be out of an overabundance of
9 caution but if Your Honours -- Your Honour would care to address the
10 accused, which I know is allowed, and simply get him to confirm that he
11 takes the same view as his counsel. That he does not intend to make such
12 an application.
13 JUDGE ORIE: Yes. While it is unusual, Mr. Kabashi, because
14 usually counsel is speaking for you, but do you consider at any later
15 stage to instruct counsel or even to take any initiative as to file an
16 application for disqualification of myself or the other Judges of this
17 Bench? Because then we would very much like to know.
18 THE ACCUSED: [Interpretation] No. On the contrary, Your Honour.
19 JUDGE ORIE: Thank you.
20 This being clarified, I think we can conclude this Status
21 Conference.
22 We adjourn until 2.30 this afternoon in this same courtroom.
23 Should this change to a later time this afternoon, the Registry will
24 immediately communicate with the parties.
25 We stand adjourned.
Page 66
1 --- Whereupon the hearing adjourned at 12.18 p.m.
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