Tribunal Criminal Tribunal for the Former Yugoslavia

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 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.

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 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.

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 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

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 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.

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 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.

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 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.

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 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

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 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

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 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.

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 1                            --- Whereupon the hearing adjourned at 12.18 p.m.