Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 16 September 2011

 2                           [Sentencing Judgement]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 3.34 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone.  Madam Registrar, would

 7     you please call the case?

 8             THE REGISTRAR:  Good afternoon, Your Honours.  This is

 9     Case number IT-04-84-R77.1-T, the Prosecutor versus Shefqet Kabashi.

10             JUDGE ORIE:  Thank you, Madam Registrar.  May I have the

11     appearances?  Prosecution first.

12             MR. HANNIS:  Good afternoon, Your Honours.  For the Office of the

13     Prosecutor, I'm Tom Hannis, aim appearing with Alma Imamovic-Ivanov.

14     Ms. Korner is participating in an extended sitting in the Mico Stanisic

15     and Stojan Zupljanin trial and I'm standing in for her.

16             JUDGE ORIE:  Thank you also for that explanation, Mr. Hannis.

17     For the Defence, I see that you are present, Mr. Kabashi.  There is an

18     audio link established with your counsel, and I would like to verify

19     whether Mr Karnavas is at the other side of the audio link and whether he

20     can hear me.

21             MR. KARNAVAS:  Good afternoon, Your Honours, I am on the other

22     side and I can hear you.

23             JUDGE ORIE:  Thank you, Mr Karnavas.  We will then proceed.

24             Mr Karnavas, we already expressed that you would be excused for

25     not being present; that has not changed.  I now will proceed, first of

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 1     all, with a Rule 15 bis statement.

 2             Judge Morrison is absent for urgent personal reasons this

 3     afternoon, and Judge Kwon and I have considered that it is in the

 4     interests of justice to continue to proceed despite the absence of

 5     judge Morrison, pursuant to Rule 15 bis of the rules.

 6             There seems to be some noise on the line.  If it does not get any

 7     worse, then we can continue.  If it does get worse, I would like a

 8     technician to have a look at it.

 9             We are sitting today to deliver the Chamber's sentencing

10     judgement in the case of the Prosecutor versus Shefqet Kabashi.

11             For the purposes of this hearing, I will briefly summarise the

12     Chamber's findings.  I stress that it is a summary only.  The

13     authoritative account of the Trial Chamber's findings can be found in the

14     written sentencing judgement which will be made available at the end of

15     this session.

16             This case concerns Mr. Kabashi's contumacious refusal or failure

17     to answer questions as a witness in the Haradinaj et al trial, thereby

18     committing contempt of the Tribunal pursuant to Rule 77(A)(i) of the

19     Rules of Procedure and Evidence.  On 26 August 2011, Mr. Kabashi pleaded

20     guilty to two counts of contempt of the Tribunal, and the Trial Chamber

21     accepted his plea on 31 August, entering a finding of guilt.

22             The Trial Chamber will now give a summary of its sentencing

23     findings.  It recalled that the two primary purposes of sentencing in the

24     Tribunal are retribution and deterrence, both special and general.

25             The Trial Chamber considered the gravity of the offences and the

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 1     totality of the culpable conduct.  By contumaciously refusing or failing

 2     to answer questions as a witness, Mr. Kabashi deprived the

 3     Haradinaj et al Trial Chamber of evidence relevant for an effective

 4     ascertainment of truth in the adjudication of that case.  The Defence

 5     submitted that Mr. Kabashi's frustrations, his war experience and witness

 6     intimidation may have contributed to the refusal or failure to answer

 7     questions.  Despite these submissions, the Trial Chamber found that any

 8     additional motives Mr. Kabashi may have had remained vague and could not

 9     be considered in determining the appropriate sentence.

10             In mitigation, the Trial Chamber considered that according to

11     medical documentation, Mr. Kabashi suffers from post-traumatic stress

12     disorder and that his medical condition worsens in a prison environment.

13     The Trial Chamber further considered Mr. Kabashi's family situation in

14     mitigation.  Moreover, Mr. Kabashi apologised for his crime on 31 August

15     2011.  While the Trial Chamber considered his apology genuine, it

16     considered that the remorse expressed in this way was reduced in its

17     mitigating weight by the fact that Mr. Kabashi had failed to come to

18     The Hague to face the charges against him for more than four years.

19             Having summarised its findings, the Trial Chamber will now give

20     its verdict.

21             Mr. Kabashi, would you please stand.

22             For the reasons summarised above, this Trial Chamber, having

23     found you guilty on 31 August 2011, of the following charges:

24             Count 1, contempt of the Tribunal by knowingly and wilfully

25     interfering with the Tribunal's administration of justice on 5 June 2007,

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 1     and;

 2             Count 2, contempt of the Tribunal by knowingly and wilfully

 3     interfering with the Tribunal's administration of justice on 20 November

 4     2007.

 5             Hereby sentences you, Mr. Kabashi, to a single sentence of two

 6     months of imprisonment.

 7             You are entitled to credit for the period of time you have been

 8     in custody, which amounts to 31 days.

 9             Mr. Kabashi, you may be seated.

10             This concludes the delivery of the sentencing judgement which

11     will now be made publicly available.  And before we adjourn, I would like

12     to verify with Mr Karnavas whether he has been able to follow the

13     pronouncement of sentence.

14             MR. KARNAVAS:  I have been able to, Your Honour.

15             JUDGE ORIE:  Thank you, Mr Karnavas.  The Trial Chamber stands

16     adjourned.

17                           --- Whereupon the hearing adjourned at 3.43 p.m.