Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5406

1 Tuesday, 5 June 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.19 a.m.

5 JUDGE ORIE: Good morning to everyone.

6 Madam Registrar, would you please call the case.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-04-84-T, the Prosecutor versus Ramush Haradinaj et al.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 Before you're invited, Mr. Re, to call your next witness, there

11 was an issue that still needs to be resolved because the Appeals Chamber

12 has given a decision on lifting of protective measures, but there is a

13 condition to that decision, the condition being that VWS should notify the

14 registry and the parties of the outcome of their conversations with the

15 witness about lifting the protective measures. And as far as the Chamber

16 was aware, such notification had not officially taken place, so therefore

17 the Trial Chamber would very much like to hear from VWS at this moment

18 what the results were, and since informally the Trial Chamber learned that

19 the outcome was such that the protective measures could be lifted, there's

20 no need to go into private session. We invited Ms. Wintgen to inform, to

21 notify the parties and the registry and of course the Chamber about the

22 outcome of the conversations with the witness.

23 Could you please inform the Chamber, Ms. Wintgen?

24 MS. WINTGEN: I met with the witness after his arrival here last

25 week and he not only confirmed that he wants to have the protective

Page 5407

1 measures lifted; he's verbally asked for it.

2 JUDGE ORIE: Yes. Thank you very much, Ms. Wintgen. This means

3 that now all conditions are met for the lifting of confidential -- of

4 protective measures in relation to your next witness, which is

5 Mr. Kabashi, if I understand -- if we understand the -- yes. I have some

6 difficulties. My line of sight with Mr. Re is not perfect, but --

7 MR. RE: Ms. Issa is taking the witness, so

8 JUDGE ORIE: Who --

9 MR. RE: Ms. Issa will be taking the witness --


11 MR. RE: -- so maybe Your Honour doesn't need to see me as much.


13 Ms. Wintgen, I thank you very much. I take it that this informal

14 notification which is now on the record is sufficient. Yes. Then I'd

15 like to thank you very much for coming to the courtroom, Ms. Wintgen, and

16 you are excused.

17 MS. WINTGEN: You're welcome.

18 JUDGE ORIE: Mr. Emmerson, if you want to raise a procedural

19 issue, I would like to raise another procedural issue first --

20 MR. EMMERSON: Well, of course.

21 JUDGE ORIE: -- so you'll get an opportunity.

22 Judge Hoepfel.

23 JUDGE HOEPFEL: Yes. I would like to make a statement which

24 concerns myself and a certain member of the Prosecution team, Ms. Romana

25 Schweiger. Ms. Schweiger happens not only to be from my country, Austria,

Page 5408

1 but was also my student and my assistant at the University of Vienna. As

2 you are aware, Ms. Schweiger was placed on the Prosecution team in this

3 case after the trial had already begun. I have known Ms. Schweiger for a

4 number of years, first as an undergraduate student and later as doctoral

5 student. I was her senior doctoral supervisor. After her doctorate in

6 March 2004, Ms. Schweiger became on basis of her excellent results in

7 international criminal law, assistant of the University of Vienna in the

8 department of criminal law and criminology. Since that time and until I

9 started my work here as a Judge in December 2005, she was a member of my

10 research team. We published two short joint articles in the German

11 "Jahrbuch fur Menschen," that is, the yearbook of human rights.

12 Our cooperation ceased from the moment she became a member of the

13 OTP. The Trial Chamber is, as I can say after consultation with my

14 colleagues, certain that the former academic relationship between

15 Ms. Schweiger and myself would not in any way influence my opinion on any

16 matter in the performance of my judicial duties in this trial. I am and

17 remain impartial.

18 Although what I said is essentially in the public domain, I

19 thought that it would be good to place it on the record in order to

20 provide full transparency to the parties and the public about my former

21 academic relationship with Ms. Schweiger. Thank you.

22 JUDGE ORIE: Mr. Emmerson, you would like to raise something.

23 MR. EMMERSON: Yes. There's a matter I wanted to raise, if I

24 may. Simply this: The Trial Chamber should have been provided in respect

25 of the next witness with a 92 ter statement and a consolidated witness

Page 5409

1 statement. The consolidated witness statement differs in some respects

2 from earlier witness statements made by this witness, and in particular

3 certain incidents referred to or recorded in earlier witness statements

4 are not included within the consolidated witness statement. And I have

5 sought clarification over the previous days of the Prosecution's intention

6 in respect of those matters which have been deliberately omitted from the

7 consolidated witness statement.

8 Until this morning, it was my understanding that the Prosecution's

9 intention was to lead in chief evidence only which was contained within

10 the consolidated witness statement, but in preparing for this witness I

11 noticed that at least one incident that is referred to in the earlier

12 statements but is not included within the consolidated witness statement

13 is nonetheless included within those passages in the Limaj transcript

14 which the Prosecution have identified in response to the Trial Chamber's

15 invitation as being of potential relevance. There's obviously a tension

16 between the stated position as I understood it to be until this morning

17 and the indications that the Prosecution had given in relation to the

18 Limaj transcript.

19 Having had an opportunity to discuss the position with Ms. Issa

20 this morning, I'll allow her, if I may, to outline the Prosecution's

21 approach. But it may well be that, for example, in respect of one

22 particular incident I have in mind that the Prosecution's decision omit it

23 from the consolidated witness statement was made, as I am informed, on the

24 basis that the incident took place outside of the indictment period and

25 was therefore irrelevant. And so the question in my mind was and I've put

Page 5410

1 it to the Prosecution this morning, if it's irrelevant because it's

2 outside the indictment period for the purposes of the consolidated witness

3 statement, how is it relevant notwithstanding that it is outside the

4 indictment period for the purposes of the Limaj transcript.

5 What we have provisionally agreed and subject to the Trial

6 Chamber's view, is that as and when any issue of that kind arises or

7 indeed other issues that are referred to in the consolidated witness

8 statement that fall outside the indictment period, as and when the

9 Prosecution moves to begin to elicit such material, and Ms. Issa is on

10 notice of which passages in particular fall into that category, she will

11 notify the Trial Chamber and the Defence and the relevance of the passage

12 can be argued as and when it arises, rather than taking stock at the

13 outset of the witness's evidence of each passage and inviting a ruling in

14 advance. If that course commends itself to the Trial Chamber, we thought

15 you ought to be on notice of what's been provisionally agreed.

16 JUDGE ORIE: Mr. Guy-Smith.

17 MR. GUY-SMITH: And that is in respect to all three accused.

18 JUDGE ORIE: Yes. That's understood. The Chamber accepts the

19 proposed course to be taken, so therefore all counsel are expected to

20 raise the issue when it comes up.

21 MR. EMMERSON: And in terms of practical handling of this witness

22 and timetables, I've had an opportunity to canvass with all parties

23 including the Prosecution very rough estimated timings and I think the

24 collective view from both sides of the bar, indeed all sides of the bar is

25 that it is likely that this witness will take the whole of today and the

Page 5411

1 whole of Wednesday.

2 JUDGE ORIE: Yes. Well, the whole of Wednesday --

3 MR. GUY-SMITH: Thursday --

4 JUDGE ORIE: -- will not be much --

5 MR. EMMERSON: I'm sorry. Thursday.

6 JUDGE ORIE: -- because we are not sitting on Wednesday but I take

7 it --

8 MR. EMMERSON: In other words, the testimony of this witness is

9 likely to occupy two full days.

10 JUDGE ORIE: Two full days. Okay. It's good to be informed about

11 that.

12 Then, Ms. Issa, are you ready to call your next witness which then

13 will be Mr. Kabashi?

14 MS. ISSA: Yes, I am, Your Honour. Good morning, I just -- just

15 at the outset I just wanted as a matter of clarification --

16 JUDGE ORIE: Just very simple. It takes us some time to get

17 Mr. Kabashi here. Do you think you could address us on the matter in one

18 or two minutes because then I'll already ask Madam Usher to go and look

19 for the witness. Well, he's nearby. Sorry.

20 MS. ISSA: Yes, certainly. It won't take long. I just wanted to

21 clarify something that Mr. Emmerson just pointed out, which is, although

22 I'm not strictly leading evidence from the original statement, as I

23 indicated to Mr. Emmerson, obviously the 92 ter transcript, the Limaj

24 transcript, is before the Chamber and it's -- we anticipate will be

25 evidence, therefore, before the Chamber. And so therefore, anything

Page 5412

1 that's relevant, we pointed out which portions are relevant within the 92

2 ter transcript may be of, we would submit, of relevance to the Chamber,

3 and just because something's outside of the indictment period does not

4 necessarily mean that it is irrelevant. And so I just wanted to clarify

5 that, just because it's not in the consolidated statement, it's still in

6 the transcript which is considered to be -- which we seek to put before

7 the Chamber as evidence pursuant to the Rule 92 ter.

8 JUDGE ORIE: Yes. That's clear. You are aware that the Chamber

9 expressed some concerns about the relevance and whether or not we'll admit

10 the whole of it or whether we would exclude certain portions is still to

11 be considered. We have not decided on the matter yet, and that needs more

12 detailed review of the material.

13 MS. ISSA: Yes, I understand.

14 MR. EMMERSON: And I think Ms. Issa will be aware that the Trial

15 Chamber has already indicated in respect of matters that go to central or

16 important aspects of the evidence, that oral testimony will be required

17 rather than simply the reliance on --

18 JUDGE ORIE: Yes. Not to say that it's not evidence, but the

19 Chamber would like to hear that evidence, perhaps details and perhaps not

20 necessarily everything to be repeated, but not to say here the accused

21 is -- according to the testimony, has beaten a person and then not to say

22 any word about that. That's not the way the Chamber expects the parties

23 to proceed.

24 MR. EMMERSON: And in one sense in respect to the issues that

25 we've been discussing in relation to this witness's testimony, that point

Page 5413

1 comes into sharp focus since there will be passages of the transcript the

2 admission of which remains an issue in contention.


4 Mr. Troop.

5 MR. TROOP: Your Honour, I just raise a technical matter, which is

6 my client is currently not in receipt of translation. So perhaps we could

7 pause briefly whilst that problem is resolved.

8 JUDGE ORIE: Yes. I take it that -- are we on the right channel,

9 Madam Usher? The accused ...

10 [Trial Chamber and registrar confer]

11 JUDGE ORIE: There seems to be a technical problem which cannot be

12 resolved by just pushing some buttons.

13 Sometimes it helps if you take another socket.

14 MR. TROOP: I think the indication is that the problem's been

15 resolved. Perhaps you could just clarify that, Your Honour.

16 JUDGE ORIE: Yes. I now am looking at you, Mr. Brahimaj,

17 Mr. Balaj, and Mr. Haradinaj, and I see you all three -- from your body

18 language, I understand you all three receive the translation in your own

19 language. Thank you.

20 Then we can proceed.

21 MR. RE: Your Honour, while the witness is brought in, I just

22 briefly want to raise something about the next witness - it's fine - and

23 that is we indicated I think on Thursday that we would have another

24 witness later in the week. We've subsequently received notification last

25 night that there is a difficulty with the witness coming this week, so it

Page 5414

1 may be that this witness is the only one we have here this week.

2 JUDGE ORIE: Yes. Well, since we are -- since we need the full

3 two days still available, as I understand, that should cause no major

4 problems.

5 [The witness entered court]

6 JUDGE ORIE: Good morning. Can you hear me in a language you

7 understand, Mr. Kabashi?

8 THE WITNESS: [Interpretation] Yes.

9 JUDGE ORIE: Before you give evidence, the Rules of Procedure and

10 Evidence require you to make a solemn declaration that you will speak the

11 truth, the whole truth, and nothing but the truth. The text of this

12 declaration is now handed out to you by Madam Usher. May I invite you to

13 make that solemn declaration.

14 THE WITNESS: [Interpretation] Yes. I declare solemnly that I will

15 say the truth, the whole truth, and nothing else but the truth.

16 JUDGE ORIE: Thank you, Mr. Kabashi. Please be seated.

17 Mr. Kabashi, you'll now be examined by Ms. Issa who's counsel for

18 the Prosecution, and you will see her to your right.

19 MS. ISSA: Thank you, Your Honour.

20 THE WITNESS: [Interpretation] Yes, Honourable Judge, can I make a

21 small clarification before such questions are started?

22 JUDGE ORIE: Well, tell me what kind of clarification you would

23 like to make.

24 THE WITNESS: [Interpretation] In connection with my position as a

25 witness and my arrival here.

Page 5415

1 JUDGE ORIE: Yes. I can inform you that where you earlier have

2 testified before this Tribunal with protective measures, as the Chamber

3 understands, upon your specific wish the protective measures have been

4 lifted now. That's just for you to know; that's why you are testifying in

5 public. Would you like to say anything?

6 THE WITNESS: [Interpretation] No, just I would like to say

7 something about my position and my coming here.

8 JUDGE ORIE: Well, if -- since I do not know what it is, please

9 tell me briefly what you would like to address.

10 THE WITNESS: [Interpretation] I will not take much of your time.

11 I gave my statement a long time ago. I have also accepted to give my

12 statement in order to throw light on the crimes and to prevent the crimes

13 which are still going on in Kosovo today. However, since then I am

14 threatened by the Prosecutors to come here and give my witness today.

15 [Trial Chamber confers]

16 JUDGE ORIE: Mr. Kabashi, to the extent that you were told that

17 you have to appear if called as a witness, then that is correct. You have

18 a civil duty. I'm not going at this moment to discuss. If there's

19 something more, then of course matters might be different and then the

20 Chamber would like to know about it. But I don't know whether we should

21 do that immediately in public session, because we do not know what will

22 come, and therefore it's easier to lift confidentiality at a later stage

23 than to make any mistake in this respect.

24 Mr. Re, I think it would be your primary concern, although

25 Mr. Emmerson is standing. Any suggestion as to how to -- first of all,

Page 5416

1 are you aware -- were you prepared that such a statement would be made by

2 the witness?

3 MR. RE: Absolutely not. We had no idea --

4 JUDGE ORIE: What he's talking about.

5 MR. RE: -- what the witness is saying or why he would walk into

6 the courtroom and say this before he starts his testimony. There's

7 certainly no indication in any of his statements which he's signed and are

8 in his own language of anything of that nature The Prosecution of course

9 is very concerned about any such allegation. We don't know who he's

10 talking about.


12 MR. RE: However, the Prosecution is also very concerned of public

13 perceptions, and if there are any allegations that are dealt with in

14 closed session, a perception may well be given to the public at large that

15 something is being hidden --


17 MR. RE: -- which should not be hidden.

18 JUDGE ORIE: Yes. Well, what then would be your conclusion, to

19 proceed in open session or -- I mean, the problem is that I can't foresee

20 what the witness is going to say. Therefore, I know for sure that if

21 something is -- has become public which should not have become public,

22 then it's very difficult to have full damage control, whereas the other

23 way around, it's easier, Mr. Emmerson.

24 MR. RE: I would be content with doing it the other way around

25 initially.

Page 5417

1 JUDGE ORIE: Initially. Mr. Emmerson.

2 MR. EMMERSON: Well, provided the matter is explored before the

3 witness begins to testify, I am neutral as to whether it is done in closed

4 or open session, but I entirely see the wisdom of the course that Your

5 Honour recommends.

6 JUDGE ORIE: Then I think private session would do, Mr. Re.

7 It's just -- it's not the face of the witness, it's not anything else,

8 it's just what he says. So therefore, we turn into private session.

9 [Private session]

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 5418











11 Pages 5418-5434 redacted. Private session.















Page 5435

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 [Open session]

17 THE REGISTRAR: Your Honours, we're back in open session.

18 JUDGE ORIE: Thank you, Madam Registrar.

19 [The witness takes the stand]

20 JUDGE ORIE: Mr. Kabashi, the Chamber has heard submissions by the

21 parties made on the basis of what you told us before. We'll pay further

22 attention what you said. The Chamber will seek more information about it,

23 but what you just told us is not an obstacle to start your examination as

24 a witness. And I'd like to make perfectly clear to you that whatever you

25 know when examined, you should tell us about what you know. If there's

Page 5436

1 anything you would be disappointed about that you couldn't talk about it,

2 then at the end of your testimony we always could consider whether there

3 are any subjects which you draw our attention to and which the Chamber

4 then would find relevant to see whether any further testimony should be

5 elicited from you on those subjects you consider important.

6 But we start at this moment with your examination on the basis of

7 what the parties would like to ask you, and you are under an obligation to

8 answer the questions in accordance with the solemn declaration you gave;

9 that is, that you'll speak the truth, the whole truth, and nothing but the

10 truth.

11 Ms. Issa, you may proceed.

12 MS. ISSA: Thank you, Your Honour.

13 I don't know if we're in open session.

14 JUDGE ORIE: We are in open session, Ms. Issa.

15 MS. ISSA: Thank you.


17 [Witness answered through interpreter]

18 Examination by Ms. Issa:

19 Q. Good morning, Mr. Kabashi. I just -- could you please -- as I

20 understand it, your full name is Shefqet Kabashi. Is that correct?

21 A. Yes.

22 Q. And can you tell us when your date of birth is?

23 A. 1st of July, 1976.

24 Q. And as I understand it, sir, you were born in the village of

25 Zahaq. Is that right?

Page 5437

1 A. Yes.

2 Q. And what municipality is that in?

3 A. Peje municipality.

4 Q. And you are a Kosovar Albanian. Is that right?

5 A. Yes.

6 Q. And without saying where you work specifically, sir, could you

7 tell us what your present occupation is?

8 A. I'm a manager of a small pizzeria, a small restaurant.

9 Q. And prior to that where did you work?

10 A. In construction before I went to the states, and then in the

11 Kosova police service as a security officer.

12 Q. Thank you. Now, approximately two weeks ago on -- precisely on

13 the 10th and 12th and 14th of May, 2007, you provided a statement to the

14 Prosecution. Is that correct?

15 A. Yes.

16 Q. And I understand, sir, that you speak pretty good English, but

17 you've reviewed that statement in your mother tongue for accuracy, haven't

18 you, in Albanian?

19 A. I was given this statement for a read-back on Friday in the

20 afternoon, when I just flew back from the United States of America, and I

21 did not pay much attention, I was not in a state to pay that much

22 attention to the read-back. But the purpose was for me to come here and

23 explain to the Judges that there are no conditions for witnesses to come

24 here and testify. That's why I, again, would like to call on the Trial

25 Chamber to alleviate me from giving a statement because I'm not in a

Page 5438

1 position to give evidence. I have many explanations, facts to explain.

2 The Judge interrupted me, didn't allow me to explain, but I would like to

3 explain those facts because I'm the one who lives in Kosova. I'm the one

4 who has gone through a lot during the war, and I am the one who is brought

5 here to tell the truth about things that I saw, heard from somebody else,

6 or that I personally experienced.

7 JUDGE ORIE: Mr. Kabashi, the Chamber is not expecting to you --

8 you to do anything else than what you just told us what you're brought

9 here for; that is, to tell us the truth about the things that you saw or

10 you heard or that you personally experienced. That's your civil duty,

11 and --

12 THE WITNESS: [Interpretation] Yes, Your Honour.

13 JUDGE ORIE: Therefore, I do not fully understand what you would

14 like to explain because you could wait and listen what questions will be

15 put to you, and then to answer those questions in accordance with what you

16 did see, what you did hear, and what you did experience.

17 THE WITNESS: [Interpretation] Yes, Your Honours, it is true that

18 it is our duty, but within the framework of a normal life. Since this

19 normal life does not exist in the state where I live, where people get

20 killed and to -- nowadays the reasons why they got killed are not known,

21 when lives of people have changed, I don't know in what conditions I can

22 give a statement here. I cannot accommodate myself to giving this

23 statement here because of the things I went through.

24 If we want to hear about the truth about the things that happened

25 in Kosova, let alone Yugoslavia as a whole, my statement is not at all

Page 5439

1 regular, not to 1 per cent of it. It has been worked on and only the

2 interests of the Prosecutors have been represented there. And that's why

3 I explained that I signed that statement because of the threats and

4 because of my will to come here and tell you that there are no normal

5 conditions for a witness to come here and testify. That's why I appeal to

6 you on my behalf and on behalf of many of my friends to allow us not to

7 give statement because I really don't know in what other words to

8 explain. If a person doesn't live in normal life conditions, I don't know

9 how that person can come here and give evidence.

10 JUDGE ORIE: Your observations are still puzzling me, Mr. Kabashi,

11 because in this court you can give the answers you consider to be the

12 right answers. Therefore, if anything has happened in the past, then we

13 would like to hear from you what the answers should be. That's exactly

14 the reason why you are here, that we don't have read on paper what you may

15 have said at other occasions, but that we hear your answers to the

16 questions put to you.

17 At the same time, in your observations there seems to be some

18 elements of fear for the future caused by whomever, and of course it is

19 then surprising that you, as we understood, have fully consented in

20 lifting whatever protective measures there may have been in the past. So

21 therefore --

22 THE WITNESS: [Interpretation] Yes, Your Honour, but it's not a

23 matter of fear. I am disappointed, and not only disappointed, but certain

24 things that should not happen and should not be done in modern world have

25 happened. You, yourself, may not have come across such things, but there

Page 5440

1 were persons who were asked questions as witnesses and whose names don't

2 even appear on witness lists because they have been killed. I don't want

3 protective measures because such measures do not exist in reality; they

4 only exist within the boundaries of this courtroom, not outside it.

5 [Trial Chamber confers]

6 JUDGE ORIE: Mr. Kabashi, we will have a break now. After the

7 break, you will be examined. You are under a duty to answer all the

8 questions, and if there's anything in your statement which is not in

9 accordance with what the truthful answer to the questions would be, just

10 give us the truthful answers, nothing else. That's what we are going to

11 do after the break, and then the Chamber wishes not to continue long

12 debates on problems that may be there but that are best resolved by

13 answering questions, first questions that will be put to you by the Office

14 of the Prosecution, counsel for the Prosecution; after that, questions

15 that will be put to you by Defence counsel; and perhaps some questions as

16 well put by the Chamber. We'll resume at 11.00 and then continue the

17 examination-in-chief of Mr. Kabashi.

18 --- Recess taken at 10.35 a.m.

19 --- On resuming at 11.06 a.m.

20 JUDGE ORIE: Ms. Issa, you may proceed.

21 MS. ISSA: [Microphone not activated]

22 Q. Mr. Kabashi, before the break we were talking about your

23 statement. Now, before the 1st of June when you said you came in and

24 reviewed your statement, was the statement sent to you before that time?

25 A. I don't understand your question. I have also another request for

Page 5441

1 the Judges, if I am allowed to.

2 Q. Well, perhaps we can continue --

3 JUDGE ORIE: Well, it depends on what the question would be. As I

4 said before, we don't want to enter into a continued debate on all kind of

5 things. If, however, you would prefer to give your testimony, now with

6 protective measures, you can apply for that. That would -- one of the

7 options to be considered would be, for example, closed session. If that's

8 the kind of request you would like to make, please do so. Also keep in

9 mind, Mr. Kabashi, that we are not going to fill the next two days by

10 discussing all kind of matters. The Chamber would like to hear your

11 testimony.

12 THE WITNESS: [Interpretation] Your Honours, I'm not requesting

13 protective measures. As I told you earlier, I do not need them; however,

14 I'm not in a position to give my testimony. I'm not here capable to give

15 this testimony psychologically and morally.

16 JUDGE ORIE: Mr. Kabashi, you are under a duty to give that

17 testimony. The Chamber cannot understand what moral reasons there could

18 be not to truthfully answer any questions to you. Therefore, you are

19 urged to carefully listen to the questions and to answer them.

20 Ms. Issa, you may proceed.

21 THE WITNESS: [Interpretation] Yes, Your Honours, I agree to give

22 my testimony but I'm not capable of doing it. I'm not in a position to do

23 that. I'm not capable to do that for different, many reasons. If you

24 want to listen to these reasons, I could tell you, but please do not push

25 me any further. I cannot talk about the things you are asking me after so

Page 5442

1 many things that have happened. If you want to force me, to take me to

2 prison, I will go to prison. Sometimes they keep you in prison even if

3 you are not a criminal. I have been kept in prison before, even though

4 I've not been guilty. So this is my final request. I am not capable of

5 responding the questions.

6 [Trial Chamber confers]

7 JUDGE ORIE: Mr. Kabashi, the Chamber will give you an opportunity

8 to explain the reasons. The Chamber would like to know whether you would

9 like to do that in open session or in private session. The Chamber

10 immediately adds to this that the Chamber will make its determinations

11 on -- on the basis of what you and perhaps the parties will submit to the

12 Chamber. Therefore, you should not misunderstand our decision. The fact

13 that we are giving you an opportunity to explain the reasons does not

14 automatically mean that we accept those reasons, and therefore it's only

15 after we've heard you and if there's any need to have heard the parties,

16 we'll then determine whether or not the Chamber will grant your request.

17 So therefore, first please give us the reasons and tell us whether

18 you would like to give them in private session or in open session.

19 THE WITNESS: [Interpretation] As I said earlier, I do not need

20 closed session. Everything could be in open session; however, if you want

21 to listen to what I said earlier, in view of what has happened in my life

22 during the war, with the events after the war, and with the investigators

23 of the Prosecutors, with things that have happened with the investigations

24 in Kosova, I'm not pleased with what has happened and I'm not able to

25 testify. I cannot, very briefly, I cannot, not because somebody forces

Page 5443

1 me, not because I'm afraid of anybody. If you, as Judges, compel me to do

2 that, I can tell you that I'm not able. You can take your decision, but

3 I'm asking you and asking the Prosecutors to release me, to allow me to go

4 back to Kosova to see my children. If you want to send me to prison,

5 there is nothing I can do.

6 JUDGE ORIE: Mr. Kabashi, on the basis of what you've said, it

7 might be difficult to conclude that it's anything more that you don't want

8 to testify. You said: "I cannot." You're not afraid. You say, don't

9 compel me; I just can't do it, which sounds to some extent as, I'm not

10 willing to do it. Could you give us any specific reasons why you can't,

11 as you said.

12 Mr. Emmerson.

13 MR. EMMERSON: I'm sorry to rise because I know this is a delicate

14 process and one doesn't want, especially with a witness who can speak some

15 English and therefore can't easily be resolved by the removal of

16 headphones, one doesn't want the witness to be backwards and forwards.

17 Obviously, there may be explanations of the witness's

18 unwillingness to testify. I don't want to say anything in front of the

19 witness that may prompt a suggestion. I don't know how Your Honour wants

20 to deal with it, but my slight concern rather crosses over a concern that

21 was raised with another witness, which is that if in effect he's being

22 invited to give answers to questions that could result in him being in a

23 position where he's putting himself in contempt, then at some point before

24 he does so he ought either to be advised or be cautioned. And if not,

25 then some exploration from him of what the possible alternative reasons

Page 5444

1 may be. I'm sorry, I'm trying to be helpful, but I don't know if that is

2 helpful or not. I'm in Your Honour's hands.

3 I'm being cryptic, I suppose, about --

4 JUDGE ORIE: Yes, that's the reason why I'm re-reading what you

5 said before.

6 MR. EMMERSON: Yes. Well, I'm trying not to be suggestive.

7 JUDGE ORIE: Yes. I'm re-reading what you -- yes, Mr. Guy-Smith.

8 MR. GUY-SMITH: If the Chamber understands what Mr. Emmerson is

9 saying, that would be fine. Perhaps I can help in the code. You do

10 recall that the other day I was on my feet quite a bit with regard to

11 another witness and I was making a particular kind of point in that

12 regard.

13 JUDGE ORIE: To say that everything is now clear to me, let me

14 just --

15 MR. GUY-SMITH: I was --

16 MR. EMMERSON: Let me take the bull by the horns. The witness has

17 already given some answers, which tend to suggest that in his view some of

18 the assertions in the statements that he's made do not properly represent

19 the truth.

20 JUDGE ORIE: Oh, you mean to remind him of --

21 MR. EMMERSON: Well, there are --


23 MR. EMMERSON: -- all sorts of possible permutations --

24 JUDGE ORIE: That arise, as a matter of fact --

25 MR. EMMERSON: Given that he's already testified, there are all

Page 5445

1 possible permutations why a witness might at this stage not wish to

2 testify again.

3 JUDGE ORIE: Yes. I could perhaps explain that to the witness.

4 If, Mr. Kabashi, if one of your concerns would be - I'm not saying

5 it is, because there are a lot of potential explanations for the present

6 situation, and you're finally the only one who knows at this moment which

7 is the true explanation - if you would be concerned that by testifying at

8 this moment you would deviate from answers you've given earlier, both

9 under oath and in statements taken by investigators, and that it would

10 cause you problems in now giving testimony in deviation of what you said

11 earlier, if that would be among your concerns, then please tell us so that

12 we can see whether any solution can be found for that. It needs an

13 interpretation of our Rules on this matter, which excludes Prosecution for

14 one offence if a witness is forced to give answers. But I would then

15 discuss that with the parties at a later stage.

16 But could you please first inform us whether that is among your

17 concerns.

18 THE WITNESS: [Interpretation] As I heard here Mr. Emmerson said

19 the same thing, whether I'm not quite sure that I will say the same thing

20 I said earlier. I'm sure that what I've said is correct and accurate. I

21 could give you further details about that. However, I told you that

22 following what has happened during the investigations and after the events

23 in my country, after the event that occurred to me personally following

24 the recent threats, and at present my personal situation. So in view of

25 all these things, I cannot give testimony. It's not because I'm afraid of

Page 5446

1 anybody, it's not because that I will not say the same thing I have said

2 in the statement. I apologise, but I cannot give you testimony here.

3 Many injustices have occurred, many things have happened and I'm sick of

4 them. Many things have occurred during the investigations in Kosova, the

5 way they handled people there.

6 In my opinion, that was something which should not have happened.

7 JUDGE ORIE: Mr. Kabashi, it's of no use to refer in general terms

8 to injustices done during investigations. If there's any specific point

9 where you consider that injustice has been done to you which caused you or

10 contributed to your determination at this moment not to testify, please

11 tell us about it, but general allegations are of no use.

12 [Trial Chamber confers]

13 JUDGE ORIE: So if there's any injustice done to you you would

14 like to refer to, please do so.

15 THE WITNESS: [Interpretation] I mentioned what I wanted to say

16 earlier. I told you there have been many injustice. Everything that was

17 done was not just. The investigations, but what has happened to me

18 earlier were not proper. They didn't ask me, indeed, questions about what

19 has really happened to me. I think the way things were done was not just,

20 and the same thing should be said so about the way other people were

21 questioned --

22 JUDGE ORIE: Mr. Kabashi, I earlier offered you that if there

23 would be anything you considered important enough for us to know and that

24 you would be given an opportunity to now tell us what you, as I

25 understand, wanted to tell earlier but no questions were put to you in

Page 5447

1 this respect, so such an opportunity will be given to you at the end of

2 your testimony. Therefore, I do not understand. You're complaining about

3 behaviour which doesn't meet what you would deem to be proper. It's now

4 offered to you, that is, you answer the questions in full accordance with

5 the truth.

6 If there's anything you consider important not asked, you can tell

7 us at the end of your testimony and we could see whether we could give you

8 an opportunity to add something to your testimony. At the same time, even

9 if you would say, Let me first tell you what happened to me personally,

10 because that seems to contribute to your hesitation to testify, we could

11 give you an opportunity to do that, but not instead of but in addition to

12 answering questions put to you by the parties and by the Chamber.

13 So if you would like to address us on what happened to you, please

14 tell us.

15 THE WITNESS: [Interpretation] That was not the problem, sir. We

16 talked about other things. The problem is that I belong to that country.

17 Since people come there and investigate and they do not look, indeed, at

18 the true cases, but they bring people here simply to get some evidence in

19 order to have their wages increased and to -- in this way they do damage

20 to our country. So for me to come here under such circumstance is not

21 correct and I cannot accept it and I cannot give testimony under these

22 circumstances.

23 JUDGE ORIE: Mr. Kabashi, whatever went wrong in the past,

24 whatever people did in order to get better wages, this is the moment to

25 correct that.

Page 5448

1 THE WITNESS: [Interpretation] I do not understand what you want me

2 to say.

3 JUDGE ORIE: What I want you to say is that where you allude to

4 improper behaviour by investigators who did not care about the truth but

5 just wanted to provide some evidence in order to get better living

6 conditions, that if that was the case, then forget about what happened and

7 now do it as it should be done; that is, to give the information in full

8 accordance with the truth and nothing else.

9 THE WITNESS: [Interpretation] Yes, sir. When I gave information

10 and declaration, I also did it to Kosova police and other bodies and I did

11 that in order to shed light on crimes, in order to prevent crimes which

12 are continuing to happen in Kosova. So in view of what I said earlier, I

13 had today this opportunity to express my views today, and again I'm

14 telling you that I do not accept what has happened and I cannot give

15 testimony to -- on these things which have happened there; I cannot do it.

16 [Trial Chamber confers]

17 JUDGE ORIE: The Chamber would like to invite the parties to

18 assist the Chamber in making a determination specifically in respect of

19 the application of Rule 77. I leave to the parties who would like to

20 speak first.

21 Mr. Emmerson.

22 MR. EMMERSON: Yes, I wonder if it might be sensible at this point

23 to adjourn the proceedings as far as the witness is concerned --

24 JUDGE ORIE: Yes, but the witness is then ordered to remain

25 stand-by.

Page 5449



3 MR. EMMERSON: And for the parties to have an opportunity to

4 collect their thoughts and perhaps to have inter partes discussions --


6 MR. EMMERSON: -- for ten minutes or so and then for the Bench to

7 re-convene.


9 Mr. Kabashi, you are ordered to remain stand-by, you'll follow the

10 usher. You should remain in this building and the Chamber will consider

11 what should be done and the Chamber in your absence will first hear from

12 the parties what they suggest that should be done under the present

13 circumstances. We stand adjourned for 15 minutes until quarter to 12.00.

14 --- Break taken at 11.28 a.m. ORIE: Yes.

15 Mr. Kabashi, you are ordered to stand-by, follow the usher, to

16 remain in this building and then the Chamber will consider what should be

17 done and will hear from the parties what should be done in the present

18 circumstances. We stand adjourned for 15 minutes until quarter to 12.00.

19 --- Break taken at 11.28 a.m.

20 [The witness stands down]

21 --- On resuming at 12.07 p.m.

22 MR. EMMERSON: Your Honours, I've asked that the witness be kept

23 out of court for the time being.

24 JUDGE ORIE: Yes. And that, as a matter of fact, is what the

25 Chamber had in mind as well.

Page 5450

1 MR. EMMERSON: Can I indicate that the discussions that have been

2 had at the bar have identified really three broad categories of issue

3 which arise I think in the following sequential order:

4 Number one, have we reached a position already, this witness

5 having expressed the view I think now on eight separate occasions that

6 he's not prepared to testify, that the matter has been taken as far with

7 the witness as it is proper to take it. That is the first question, as we

8 submit. The second question if there is to be consideration given to

9 contempt for proceedings, is it appropriate for this Trial Chamber to be

10 the Trial Chamber that exercises the decision-making powers vested under

11 Rule 77 or should it be another Trial Chamber. And thirdly, what steps,

12 if any, does the Trial Chamber have lawfully to deprive this individual of

13 his liberty pending any determination that there may be as to what steps

14 should be taken in relation to him, that not being the power that's

15 provided either under the Statute or the Rules.

16 Can I deal with the first point first, because really that is the

17 crucial question, has the matter been taken as far as it ought to be taken

18 at this stage. I think on this there is something of a difference of

19 opinion between Prosecution and Defence. The view of the Defence is that

20 the witness has now made his position clear on eight separate occasions in

21 the course of the testimony that he's given. Whether that amounts to a

22 refusal or a refusal with excuses is a matter not, we would submit, for

23 exploration by this Trial Chamber at this point because it is clear that

24 the witness is not willing to testify.

25 I understand that the Prosecution has a different proposal and

Page 5451

1 there are in essence two prongs to it. The first prong is that the

2 witness should be given another opportunity to see whether he is willing

3 to testify, and put in those terms alone and providing the questions were

4 put by the Bench, that is not a course that I would necessarily oppose.

5 But the second prong to the Prosecution's suggestion is that, in fact,

6 they should ignore, in effect, the expressed wishes of the witness and

7 proceed to attempt to examine him, and in so doing, to put to him his

8 witness statement and invite him to confirm that its contents are true,

9 and then in effect tender him for cross-examination.

10 I'm going to let them elaborate that proposal fairly and openly.

11 I've indicated to them that if that is their proposal, they should seek a

12 ruling from the Trial Chamber before doing so because that is a proposal

13 which we would most firmly oppose. It would be quite, in our submission,

14 improper for the Prosecution to seek to obtain 92 ter confirmation of

15 evidence in chief, knowing that a witness is not prepared to give evidence

16 on oath in support of the substance of the evidence in chief or make

17 himself available properly for cross-examination upon it.

18 The Trial Chamber has already ruled that where 92 ter material is

19 to be elicited, it should at least briefly be elicited orally in substance

20 and there's a reason for that. I appreciate that these circumstances have

21 arisen rather shortly of that ruling and may appear on their face to be

22 exceptional. But the underlying reason for it is we cannot have, in our

23 respectful submission, a fair trial taking place where, knowing that a

24 witness has adopted the posture that this witness has adopted, the

25 Prosecution seeks in effect to obviate the need for evidence in chief by

Page 5452

1 slipping through the witness an affirmation of the content, either of the

2 evidence that he gave on oath in Limaj or the evidence that's represented

3 in the various witness statements.

4 The statements differ one from another in content at various

5 points. The evidence in Limaj differs in certain respects from the

6 evidence in the statements. To ask a witness whether what he said on oath

7 in a previous trial was the truth or a lie is to invite an admission of

8 perjury. And the situation is absolutely full of minefield difficulties,

9 but above all it's an improper, in our submission, use of the

10 prosecutorial function.

11 And so if this witness is to be given another opportunity to

12 re-consider his position, then in our submission that should be confined

13 to asking him the question, yes or no, have you changed your mind. It

14 should be a question put from the Bench and he should be given an

15 opportunity to answer it. No further questioning should take place as to

16 his motives or reasons. If they are to be explored they may have to be

17 explored with the benefit of counsel and after caution perhaps by another

18 Trial Chamber. But all that can properly be done, in our submission, at

19 this stage is for this Trial Chamber to ask the witness whether he has

20 reconsidered or whether he wishes further time to consider his position

21 but not to embark on what purports to be and enforced

22 examination-in-chief, but really in the full knowledge of the Prosecution,

23 he's only going to go as far as trying to get a confirmation of previous

24 testimony and then sitting down and claiming that that's evidence in

25 chief. That's our submission, Your Honour.

Page 5453

1 JUDGE ORIE: Mr. Guy-Smith, Mr. Harvey, anything to add?


3 JUDGE ORIE: Mr. Re, would you like to make any submissions on the

4 matter, apart from -- I take it that you also understood that Mr. Emmerson

5 eloquently told us that this is a minefield. The Chamber is aware of the

6 mines it has detected. If there are any other mines, please tell us.

7 MR. RE: I'll give him eloquence but not actually accuracy in

8 terms of what my submissions were going to be on this point. The

9 Prosecution's submissions on the point are that it has not yet reached the

10 point under Rule 77 or dealing with the witness in relation to possible

11 contempt. The witness, we have all heard, has expressed some reluctance

12 to testify. Our submission is the following procedure should occur.

13 The witness should be brought back into court and the Prosecution

14 should be allowed to continue to see whether the witness is prepared to go

15 further. We have only gone so far in terms of the testimony we have

16 sought to elicit from him. The first thing we'd do would be to go back to

17 the Rule 92 ter intended statement. He's already said on the record that

18 it's correct. We would then take it to him and continue in the normal

19 process of giving evidence.

20 In effect what I'm saying is that the witness should be given

21 another chance. The Prosecution is anxious not to have witnesses dealt

22 with under Rule 77 if it can possibly be avoided, and we are of the view

23 it is not yet at that point. So the witness should be brought back and

24 given the chance.

25 Now, what happens after that if the witness is reluctant or does

Page 5454

1 not wish or expresses a refusal to testify in the face of the Tribunal is

2 a matter which should be pursued by the Trial Chamber. And the other

3 issues to which Mr. Emmerson has alluded are matters slightly further down

4 the track. Prosecution is not intending just to bring the witness in and

5 say, Is this your statement, is it correct, and sit down. That would be,

6 in my submission, a misuse of Rule 92 ter and we certainly would not be

7 intending to do that at all. We would intend to see whether the witness

8 is prepared to testify and see how far we can -- we can go.

9 Another suggestion was made during discussions between counsel

10 inter partes, which was if the witness still refuses to testify or

11 expresses reluctance, that he could be granted a further "cooling-off

12 period," as indeed was the case adopted by the Trial Chamber in the

13 Bulatovic contempt issue in the Milosevic case in which the witness was

14 basically sent home - I'm sorry - sent away overnight and asked to come

15 back the next day to see whether he would reconsider. Those -- that would

16 be the preferred course of course -- preferred course of action from the

17 Prosecution, and it is only once you reach that stage that further action

18 should be taken.

19 But we also note - and this is quite important - that the 92 ter

20 statement was signed on Friday, the 1st of June, and the Prosecution

21 actually provided the statement to the witness in his own language on May

22 the 16th. So the witness has had the statement in his own language and in

23 English for two weeks before he came to The Hague and has had that

24 statement, a signed copy of the statement since last Friday, and it's now

25 Tuesday. Those are my submissions.

Page 5455

1 JUDGE ORIE: Thank you, Mr. Re.

2 MR. EMMERSON: Can I respond briefly? First of all, the witness

3 has given two answers --

4 JUDGE ORIE: Before I give you an opportunity, just to know for

5 sure, the 92 ter statement is the short statement signed on the 1st of

6 June, I take it, Mr. Re, that is, in which at least quite a lot of details

7 in ill-treatment in Jablanica were left out?

8 MR. RE: Only because those were the parts we intended to lead

9 orally from the witness.

10 JUDGE ORIE: No, just for my --

11 MR. RE: Yes.

12 JUDGE ORIE: -- understanding that there's no confusion about

13 that.

14 Please proceed, Mr. Emmerson.

15 MR. EMMERSON: There is quite a lot of material in that which also

16 appears in the consolidated witness statement and which would have been

17 the subject of evidence in chief, and so to that extent there's material

18 in that statement that goes directly to the alleged responsibility of the

19 accused, but Your Honour's quite right that some of the key aspects of the

20 evidence are not contained within it. This witness has given conflicting

21 answers in respect of -- and indeed to some respect opaque answers in

22 respect of the correctness of what was recorded. His first response was

23 to say to Your Honour that the statement had not been properly considered

24 by him and he had not had an opportunity to assimilate the detail.

25 Whether that is true or not, according to what the Prosecution says, that

Page 5456

1 was his first answer.

2 He later gave an answer which was not specific to any particular

3 witness statement, but was to previous accounts given, which was in answer

4 to the question put by Your Honour in relation to whether his concern was

5 that he'd previously lied on oath, for example, which is with respect a

6 difficult question to put to a witness whilst on oath during the course of

7 a trial; in any event, it represents its own potential minefield.

8 The way that Mr. Re puts it, I'm glad to hear involves a

9 recognition that it would be a misuse by the Prosecution of Rule 92 ter to

10 proceed to put to the witness the witness's statement and at that stage,

11 in full recognition of the fact he wasn't prepared to testify orally, to

12 seek to rely on that. That at least is some firm ground beneath the

13 parties' feet, because that's not the way, with the greatest of respect,

14 the matter was outlined to me in the break but it perhaps involves a

15 misunderstanding by me of what I was being told. That's why I insisted

16 that the matter be brought to the Trial Chamber for a ruling.

17 It seems to me, with respect, that if what Mr. Re is really trying

18 to find out is whether this witness is genuinely willing to testify orally

19 and that is really what the Prosecution seeks to do, then that is a matter

20 that can best be achieved by the Trial Chamber asking him if he has

21 changed his mind and, if not, whether a further period of reflection

22 overnight might assist him to change his mind. Those are questions to

23 which I would not object.

24 If Your Honour is against me - and I must say I do urge most

25 strongly that that be as far as it be taken at this stage and see how the

Page 5457

1 witness responds, because that is a genuine inquiry to see if he is

2 willing to testify orally. If Your Honour is against me as an alternative

3 position that the Prosecution should in our submission as a minimum be

4 required and confined to examining the substance of his testimony orally.

5 If what Mr. Re says is right and the Prosecution is not seeking through

6 the proposed course of action to obviate the problem by getting agreement

7 to a 92 ter statement and then in full knowledge that the witness won't

8 give oral testimony rely upon that, then the right and proper course would

9 be to put the 92 ter statement only at the very end in re-examination once

10 he's given oral evidence of the substance, but not, as is obviously the

11 risk - and indeed, Mr. Re acknowledges this - to move within three

12 questions to say, is this your statement, did you tell the truth or did

13 you lie, were you committing perjury when you gave evidence in Limaj, and

14 at that point the witness says, I'm not prepared to answer any further

15 questions and we find ourselves in a situation which is entirely

16 predictable as we stand here now.

17 So two submissions: First of all, the right course, and really

18 the only right course now, is for the Trial Chamber to take responsibility

19 for asking the questions of the witness, not the Prosecution and for them

20 to ask the question, have you changed your mind; if not, would further

21 time assist you? If Your Honour is against me, then I've made the

22 alternative submission.

23 JUDGE ORIE: Mr. Re, any need to respond?

24 MR. RE: Prosecution doesn't agree in the -- with the way it's

25 been expressed by Mr. Emmerson in a sense that it is a black and white

Page 5458

1 situation of what he said in Limaj contradicts what he says in his

2 statement, therefore there's a question of perjury. The Prosecution is of

3 the view that it's far more nuanced and there are ways which things people

4 say -- any differences can be reconciled and can be done on the record.

5 The Prosecution's proposal is that it continue with the questioning to see

6 whether the witness will testify and how far he would go. All I was

7 saying is, we would not say, Is this your statement, 92 bis, and then sit

8 down; we would wish to take it further. So those are the submissions as

9 to how we would deal with the matter.

10 JUDGE ORIE: Thank you.

11 [Trial Chamber confers]

12 JUDGE ORIE: The Chamber will proceed mainly in accordance with

13 the line suggested by Mr. Emmerson, and the Chamber would like to ask

14 Madam Usher to escort the witness into the courtroom.

15 [The witness takes the stand]

16 JUDGE ORIE: Mr. Kabashi, the Chamber has observed that you

17 repeatedly told us that you would not answer questions put to you by the

18 parties or by the Bench. The Chamber also carefully listened to the

19 reasons you have presented for not answering questions. The reasons

20 you've given have not convinced the Chamber that these are reasons

21 justifying a refusal to answer questions where you are here as a witness.

22 The Chamber, therefore, would like to remind you of your duty; that is, to

23 testify and answer questions.

24 Now, since you left the courtroom, almost one hour passed. And I

25 take it that you have given it some thought, the present situation, as the

Page 5459

1 Chamber and the parties have given it some thought how to proceed. May I

2 first ask you: Do you still insist, that is, that you'll not answer

3 questions put to you?

4 THE WITNESS: [Interpretation] Your Honours, I heard you through

5 interpretation. You said that I do not accept answering the questions and

6 do not want to answer questions. I have never said this. I have never

7 said I do not want, that I refuse. I have never said this so far. I have

8 said that I cannot. If you understand me, I -- it's not possible for me

9 to respond to questions and continue to respond questions about the

10 events. I've never said I refuse and that I do not want. If you want

11 clarifications or if you want some cases from me, I could give you, but

12 I've never said that I do not want and I reject.

13 JUDGE ORIE: Mr. Kabashi, let's be quite clear. To testify means

14 to answer the questions put to you by those who are examining you; that

15 is, if you fail to answer a question -- now, quite simply, if Ms. Issa,

16 and later Defence counsel and the Bench, would put questions to you, would

17 you answer them?

18 THE WITNESS: [Interpretation] I said earlier, it is not that I do

19 not want to answer questions; however, on basis of the cases that have

20 occurred and the circumstances in the country I live, which is most

21 important --

22 JUDGE ORIE: I don't want -- I don't want any further explanation

23 at this moment. I just want to know if I invite Ms. Issa to continue the

24 examination, will you answer her questions, yes or no?

25 THE WITNESS: [Interpretation] I would have wished to, but I

Page 5460

1 cannot. I apologise.

2 JUDGE ORIE: Do I understand that you will not respond to her

3 questions?

4 THE WITNESS: [Interpretation] As I said.

5 [Trial Chamber confers]

6 JUDGE ORIE: Mr. Kabashi, your answers are not unambiguous.

7 Therefore, we'll find out what happens. I'll give an opportunity to

8 Ms. Issa to continue the examination.

9 Ms. Issa, at the same time, you are -- you are guided just to put

10 questions to the witness and not to start with seeking confirmation of a

11 written statement. I'm not saying that this should be excluded, but

12 that's not the starting point for your examination.

13 MR. EMMERSON: Can I indicate in that connection I have a standing

14 objection to that course, and the moment any thought is given by the

15 Prosecution to pursuing it, I would like a ruling from the Trial Chamber

16 after argument.

17 MR. GUY-SMITH: I similarly would have a standing objection. I

18 also believe that -- at least as I understand English, and I don't know

19 whether or not --

20 JUDGE ORIE: That's a -- Mr. Guy-Smith --

21 MR. GUY-SMITH: -- the issue between "cannot" and "will not" is --


23 MR. GUY-SMITH: -- is where I think, if there would be an

24 ambiguity, that would be the ambiguity that would have been articulated --

25 JUDGE ORIE: Mr. Guy-Smith, the proof of the pudding is in this

Page 5461

1 case in the eating and we'll -- with all the caution I gave, we'll try to

2 find out what, just by experiencing, what the position of the witness is.

3 Ms. Issa, you may proceed.

4 MS. ISSA: Thank you, Your Honour.

5 Q. Mr. Kabashi, drawing your attention to the year 1998. Were you a

6 member of the KLA at that point?

7 A. Gentlemen, I apologise, I cannot to talk about these things.

8 [In English] I'm done. I cannot do that.

9 JUDGE ORIE: Mr. Kabashi, you're invited -- the question was quite

10 simple. Your attention was drawn to 1998. The question was whether you

11 were a member of the KLA at that point in time. If 1998 is too vague for

12 you, if you would like to have that specified, please ask further

13 specification; if not, please answer the question.

14 MR. GUY-SMITH: If I might, Your Honour, I believe that in my

15 estimation - and I understand the Chamber has perhaps a different view -

16 he has answered the question. I also am concerned by virtue of my --

17 JUDGE ORIE: Mr. Guy-Smith, I now want to proceed as I indicated.

18 MR. GUY-SMITH: The reason I'm --

19 JUDGE ORIE: Mr. Kabashi -- Mr. Guy-Smith --

20 MR. GUY-SMITH: The reason I'm imposing is because an issue of

21 potential -- there's a legal issue that exists with an issue of potential

22 waiver in the event that there are further legal proceedings that may

23 occur with this young man, and he cannot be put in a position where --

24 JUDGE ORIE: Mr. --

25 MR. GUY-SMITH: -- Where his testimony would allow him to be put

Page 5462

1 in a legal compromised position of having waived --

2 JUDGE ORIE: Mr. --

3 MR. GUY-SMITH: -- Any legal rights that he might have.

4 JUDGE ORIE: -- Guy-Smith, it's clear.

5 Mr. Kabashi, if you would have any hesitation to answer this

6 question because you at any earlier occasion would have not told the truth

7 about the matter, then please tell us. We could try to find a solution

8 for that problem. But if you answer the question now, it should be in

9 full accordance with the truth. Could you answer the question about

10 whether you were a KLA member in 1998 or at any moment in 1998?

11 THE WITNESS: [Interpretation] I said, sir, I'm not hesitant, it's

12 not a matter of hesitation. I mentioned some earlier cases. There are

13 many others which have to do with these things. It is not that I

14 hesitate, but I cannot and I cannot. I cannot go through this trial --

15 with this question. I am not in a position. I cannot do it.

16 JUDGE ORIE: Ms. Issa, the Chamber considers this a failure to

17 answer a question, and in view of the approach taken by the witness until

18 now, the Chamber considers it not very useful that you continue your

19 examination-in-chief at this moment. We'll go a different direction now.

20 Mr. Kabashi, as I said before, you told us what your position was

21 in relation to giving testimony in this court. You gave some reasons.

22 We --

23 [Trial Chamber and registrar confer]

24 JUDGE ORIE: You gave the reasons for this approach -- I would now

25 like to finish, Mr. Emmerson.

Page 5463

1 You gave the reasons. I reminded you of your duties in this

2 respect. The Chamber established a couple of seconds ago that you failed

3 to answer a question. The Chamber, therefore, finds that you have not

4 changed your mind, compared to the position you took approximately one

5 hour ago. Before we continue, I would like to inform you that in the

6 present circumstances the Chamber considers it necessary to provide legal

7 counsel to you, because the Chamber considers that you should not do

8 without it at this moment.

9 For that very reason, Madam Usher, could you please ask

10 Mr. Karnavas, who is waiting outside of this courtroom, to enter the

11 courtroom.

12 Mr. Karnavas --

13 [Trial Chamber and registrar confer]

14 JUDGE ORIE: Madam Registrar asked which side I would have to put

15 you. I answer to her "in the middle," Mr. Karnavas. Could you take a

16 seat, and that seat is considered to be in the middle.

17 MR. KARNAVAS: [Microphone not activated]

18 JUDGE ORIE: Mr. Kabashi, we invited Mr. Karnavas to enter this

19 courtroom. Mr. Karnavas is a -- is an experienced lawyer practising

20 before this Tribunal.

21 Mr. Karnavas, we invited you after we were informed that you would

22 be willing to provide counsel to Mr. Kabashi, at least provisionally. I

23 mean, we can't talk about eternity, but at least temporarily you were

24 willing to provide counsel to Mr. Kabashi. Just for your information, the

25 Chamber, it took us some time, we heard the submissions of the parties on

Page 5464

1 how to proceed in the present circumstances, where Mr. Kabashi expressed -

2 parties' views are different, reluctance, unwillingness, refusal, that's a

3 matter of qualification - but at least he expressed that he would rather

4 not testify. Since there was some ambiguity, the Chamber allowed the

5 Prosecution to continue examination-in-chief, and Mr. Kabashi failed to

6 answer the first question put to him by Ms. Issa.

7 Under the present circumstances, the Chamber would like to explain

8 to Mr. Kabashi what the procedure is that will follow.

9 Yes, Mr. Emmerson.

10 MR. EMMERSON: I know that Mr. Karnavas is coming in at a rather

11 late stage in the process, and I don't know whether it would in any way

12 assist Your Honours to have some short submissions on what the next step

13 in the process ought to be, because there seems to be very little in the

14 Tribunal's jurisprudence on the interpretation and activation of Rule 77.

15 I have in the course of the break e-mailed to the Trial Chamber a decision

16 of the European Court of Human Rights about the appropriateness of one

17 Tribunal dealing with a contempt committed before that Tribunal which

18 contains some comparative jurisprudence and some fairly strong warning --

19 JUDGE ORIE: We'll look at it. Mr. Emmerson, please be advised

20 that just as you are working hard on the breaks, the Chamber does as

21 well --


23 JUDGE ORIE: -- and that no final decisions at this moment are

24 made but --

25 MR. EMMERSON: That was all --

Page 5465

1 JUDGE ORIE: -- I'll explain to you what the Chamber -- just to

2 inform the witness, what is a envisaged course to proceed.

3 The Chamber, Mr. Kabashi, might decide to proceed under Rule 77.

4 That means that the Chamber should believe that -- or at least that it has

5 reasons to believe that you are in contempt if we would have reasons to

6 believe that and that would then focus on contempt of court under Rule

7 77(A)(i), which reads that someone can be held in contempt: "being a

8 witness before a Chamber, contumaciously refuses or fails to answer a

9 question."

10 We could also look at it in a broader way, that is, your -- what

11 you said about your testimony in more general terms before this Tribunal.

12 The Chamber has then several options. One of the options would be that

13 the Chamber would invite the Prosecution to further investigate the matter

14 and to bring an indictment against you; another option would be that the

15 Chamber would prosecute the case itself, that's an issue on which

16 Mr. Emmerson has -- has brought to our attention decisions of the European

17 Court of Human Rights. So that's, I would say, a practical matter, that

18 is, who should prosecute contempt of court.

19 Then if this Chamber would do it itself, then we would consider

20 when we would hear such a case, and if it is not this Chamber that would

21 hear the contempt case, then of course we would have to consider when

22 another Chamber would be available to hear a contempt case. Whatever the

23 Chamber will decide, it should be clear to you that - and this is an order

24 of the Chamber - you would have to keep yourself available.

25 What we'll do at this moment is to adjourn for some 45 minutes.

Page 5466

1 During these 45 minutes, Mr. Karnavas is available for you to consult.

2 There will be an interpreter available. Once you've consulted

3 Mr. Karnavas, the Chamber will have given it additional thought on how to

4 proceed, of course depending on the situation that is in existence then,

5 and then draft your options. We'll not -- I'll not anticipate on those

6 options. But at this moment, you're ordered not to leave the premises of

7 the Tribunal at this moment. Mr. Karnavas will certainly be able to

8 explain to you what would be the consequences if you would leave the

9 premises, and in addition to this, until matters have been resolved,

10 you're also ordered not to leave the territory of the Netherlands.

11 Mr. Karnavas also will be in a position to explain to you what it would

12 mean if you would not follow this order.

13 Is that clear to you, Mr. Kabashi?

14 THE WITNESS: [Interpretation] Yes, sir.


16 Then we'll adjourn until 20 minutes past 1.00, and then we'll

17 resume.

18 --- Recess taken at 12.45 p.m.

19 --- On resuming at 1.36 p.m.

20 JUDGE ORIE: Mr. Kabashi, did you have an opportunity to consult

21 with Mr. Karnavas?

22 THE WITNESS: [Interpretation] Yes.

23 JUDGE ORIE: Has he explained to you your present situation and

24 also what the consequences may be if you persist in the position you've

25 taken until now?

Page 5467

1 THE WITNESS: [Interpretation] Yes.


3 Then, Mr. Kabashi, before I ask you whether your position has

4 changed, I have to warn you that the consequences I -- possible

5 consequences I did put to you before the break might become reality; that

6 is, that you might be prosecuted and sentenced, maximum penalty for

7 contempt of court is a long term of imprisonment, maximum seven years.

8 This is not to say that for contempt cases usually seven years are

9 imposed, but I have to put to you how serious consequences can be. May I

10 ask you, Mr. Kabashi, did you change your mind as -- yes, Mr. --

11 MR. KARNAVAS: Thank you --


13 MR. KARNAVAS: -- Mr. President, Your Honours, good morning --

14 JUDGE ORIE: Yes. Good afternoon, yes.

15 MR. KARNAVAS: Good afternoon. If I may, I did speak with the

16 gentleman. I did go over all his rights and the consequences. He's very

17 well aware of the consequences, and I've indicated to him that I would

18 speak on his behalf if that would be okay.

19 JUDGE ORIE: Yes, that's fine.

20 MR. KARNAVAS: And here is our respective position, Mr. President,

21 Your Honours. At this point in time, as he's indicated in the past, not

22 that he does not want to, but he believes that he is not in a position,

23 he's unable psychologically and for other reasons, to answer any questions

24 and doesn't wish to any questions and realises the consequences that may

25 follow. But nonetheless, that is his position.

Page 5468

1 JUDGE ORIE: Yes. That is, basically his position has not changed

2 compared to the position he took before the break?



5 [Trial Chamber confers]

6 JUDGE ORIE: Mr. Kabashi, I just wanted to seek your confirmation

7 that what Mr. Karnavas just told us is your position - and I ask you this

8 question taking it that you are fully aware of possible consequences.

9 Could you confirm that what Mr. Karnavas just said is the position you

10 take?

11 THE WITNESS: [Interpretation] Yes, sir. This is my position. I

12 tried to explain to you earlier about the injustices made during the

13 investigations into the events that occurred to me about the situation I

14 am in. If this is not sufficient, I do not have anything to add. I stand

15 by what Mr. Karnavas has just said.

16 JUDGE ORIE: Yes. Thank you, Mr. Kabashi, for that.

17 The Chamber has considered what to do under the present

18 circumstances, and the Chamber has decided that it would issue an order in

19 lieu of an indictment under Rule 77, 77(D).

20 Mr. Emmerson, you have drawn the attention of the Chamber to

21 Cypriotic case before the European Court of Human Rights. If the Chamber

22 remembers well, it's not the first time that you have drawn our attention

23 to that case.

24 MR. EMMERSON: I think it is the first time.

25 JUDGE ORIE: Oh. I remember that I saw you appearing at another

Page 5469

1 occasion where --

2 MR. EMMERSON: It's a different case --

3 JUDGE ORIE: I remember two decisions but okay. We have studied

4 that and the Chamber has looked at this decision, has noticed that there

5 are two important features that distinguish the case dealt with by the

6 European Court of Human Rights and the present case. The first one being

7 that the Judges themselves were the object and target of the contemptuous

8 expressions by the lawyer at that time. The second one is the way in

9 which in that case the Chamber proceeded. If you can talk about summary

10 proceedings, they were very summarious.


12 JUDGE ORIE: And the Chamber considers the way it proceeds not to

13 be similar to what it has done, so for those reasons were the Chamber

14 will, apart from issuing an order, will also decide to prosecute the

15 matter itself and the Chamber will do it in the following way --

16 MR. EMMERSON: I only pause because the purpose of bringing that

17 decision to the Trial Chamber's attention was entirely recognising that

18 the factual circumstances in that case were different, but nonetheless in

19 the first part of the Article 6 decision and looking at what was

20 considered to be comparative jurisprudence in support of that proposition,

21 a strong presumption against a Trial Chamber dealing summarily with the

22 contempt in the face of the Court, unless it was strictly necessary in

23 order to enable the proceedings to continue.

24 Now, it occurs to me - and I'm -- this is not even remotely to be

25 taken as any kind of criticism at all because I think it is inevitable in

Page 5470

1 exploring contempt in the course of proceedings, that a Judge may come to

2 express certain opinions to the witness in the course of questioning them,

3 which if I were representing the witness and in Mr. Karnavas's position

4 may cause me to make submissions, not analogous directly to the Kyprianov

5 case but on the first limb of Article 6 that there is an appearance, not

6 an actual bias, but an appearance of the bias of having a Tribunal who

7 appears to have expressed a view as to whether or not a person is in

8 contempt then going on to try with the presumption of innocence whether

9 they are not.

10 And before Your Honours make a decision, I wondered whether Mr.

11 Karnavas might -- it's really not my issue, although to some extent, since

12 you are the Trial Chamber for my own accused as well, there is a

13 cross-over. But I wonder whether Mr. Karnavas has had the opportunity to

14 consider those passages in the transcript against the jurisprudence and to

15 make submissions to Your Honours if he thinks it right, that's all.

16 JUDGE ORIE: Mr. Karnavas.

17 MR. KARNAVAS: Thank you, Mr. President, and I thank Mr. Emmerson

18 for bringing the case to my attention. I was familiar with it because I

19 had read it in the past. I haven't studied the transcript as thoroughly

20 as I would have liked to. I do take on point what Mr. Emmerson seems to

21 be indicating. I think as a matter of caution it might be best to have

22 the matter heard before another three Judges, but at this point in time I

23 haven't heard what the Trial Chamber intends to do. I haven't -- I mean,

24 you were stopped midway and so it might be a bit premature for me to sort

25 of -- and I'm not clairvoyant, so I don't know exactly what you intend.

Page 5471

1 [Trial Chamber confers]

2 JUDGE ORIE: The Chamber has considered the matter, Mr. Karnavas,

3 and the Chamber -- well, to give you a glance at what you could expect,

4 the Chamber is about to issue an order and to decide to prosecute the

5 matter itself, which of course does not preclude you from raising any

6 defence of the Chamber being biased or -- well, to follow whatever is

7 under -- in the Cypriotic case is raised under Article 6 of the European

8 Convention of Human Rights. So the mere fact that we order the

9 Prosecution and that we decide that it will be this Chamber to prosecute

10 itself, following the Bulatovic precedent, does not prevent you in any way

11 from --

12 MR. RE: Your Honour.


14 MR. RE: Might the Prosecution be very briefly heard on that

15 point. In our view it's important that the Prosecution's submission is

16 put before the Chamber or at least is on the record at this point.

17 JUDGE ORIE: Please do so.

18 MR. RE: The Prosecution views what has happened today as

19 extremely serious. There would appear to an objective outsider to be an

20 element of sabotage from the witness, a former KLA member, coming here and

21 declaring he wasn't going to testify, having not -- and said on the record

22 he had given no indication of this before. The Trial Chamber has a very

23 serious and onerous task in trying to establish the truth, and it is

24 important for public justice that all witnesses or all relevant evidence

25 is heard. And such behaviour before the Trial Chamber, in the face of the

Page 5472

1 Trial Chamber, should not be countenanced. And the Prosecution fully

2 supports the Trial Chamber issuing an order that the witness be prosecuted

3 for contempt.

4 However, the Prosecution's submissions on who should conduct it,

5 we would join with the Defence in saying that it would be preferable for

6 another Trial Chamber to be seized of the hearing of the actual -- the

7 prosecution of the contempt matter, and the choice is the Trial Chamber or

8 an amicus. Our preference, in our submission, should be that it should be

9 another Trial Chamber which hears this particular matter.

10 MR. KARNAVAS: If I may be briefly heard, Your Honour --


12 MR. KARNAVAS: -- while I welcome the Prosecution -- the

13 Prosecution's position in asking that another Chamber hear the matter, I

14 do take exception to the characterisation that to an objective observer

15 that the gentleman came here to sabotage the proceedings, I think that

16 we're way ahead of the ball game on this. Now, he may -- the Prosecutor

17 may wish to harbour these sorts of thoughts, but I think these are just

18 empty words and I would take exception to the Trial Chamber considering

19 those submissions as part of the reasons why the gentleman at this point

20 in time does not wish to answer questions, because in his opinion he

21 cannot, not that he will not. Thank you.

22 [Trial Chamber confers]

23 JUDGE ORIE: The Chamber, as may be clear, is seriously

24 considering to give an order, as I gave you a preview on already.

25 Nevertheless, on the basis of the submissions made now, the Chamber will

Page 5473

1 not take a very long time, but at least will take some time to consider

2 whether what -- what -- to consider whether instead of giving a decision

3 now a decision should be given still today but in writing and to be filed

4 most likely, but I'm not giving any promises, within the next one hour and

5 a half.

6 Mr. Guy-Smith.

7 MR. GUY-SMITH: Yes. I take it that that decision will be a

8 decision on how the Chamber is planning on proceeding.

9 JUDGE ORIE: Yes. Then of course there would be all kind of

10 practical matters. One of the matters the Chamber has considered is

11 whether it could proceed very quickly; that means the next day of hearing

12 the case. That would be on Thursday.

13 Mr. Karnavas, earlier I said that you made yourself temporarily

14 available. The Chamber has no full insight in your agenda, but would not

15 be surprised if Thursday morning you would have to appear in another case.

16 MR. KARNAVAS: Very well. Thursday afternoon might be a little

17 better, but -- and Friday for sure.

18 JUDGE ORIE: Yes. Friday, is, unfortunately, impossible for the

19 Chamber.

20 MR. KARNAVAS: Very well, Your Honour. I'll leave it at your

21 pleasure.

22 JUDGE ORIE: Mr. Guy-Smith.

23 MR. GUY-SMITH: Yes. If I might, because I think there might be

24 some substantive issues at hand. I believe it would be appropriate and I

25 don't want to be in the position of having given the information

Page 5474

1 necessarily to Mr. Karnavas from the Defence, but I believe since we have

2 been in a similar situation before where a witness has been reluctant to

3 testify, that those proceedings should also be made available to

4 Mr. Karnavas so he has the fullness of what this Chamber's reasoning is

5 historically.

6 JUDGE ORIE: That would be part of what had happened in private

7 session, and I would say it doesn't go without saying because in law

8 nothing goes without saying, but the Chamber hereby orders to make

9 available to Mr. Karnavas the material on which, of course, he will have

10 to rely when providing counsel to Mr. Kabashi.

11 MR. GUY-SMITH: Thank you very much.


13 Then we are already past quarter to 2.00. The Chamber,

14 Mr. Karnavas, would appreciate very much to -- if you would make yourself

15 available for further consultations on dates and availability or handing

16 over, if need would be, to a colleague this case. It is -- depends on all

17 kind of practicalities.

18 Then there was one matter I understood, Mr. Harvey, which you

19 would like to raise and which was totally unrelated to the present

20 matter. Is there an urgency and an absolute need to do it now in open

21 court?

22 MR. HARVEY: There is an urgency to deal with it and I can do it

23 very quickly, Your Honours.

24 JUDGE ORIE: Yes. Then please do so.

25 MR. HARVEY: The matter arises from disclosure that was made

Page 5475

1 yesterday afternoon around about 1.00 p.m., as we were all in court, of

2 documents in batch 123, documents described as documents received from BiA

3 Serbia and Montenegro authorities in relation to the investigation

4 concerning these defendants. And these were an English translation of an

5 original Albanian document. I concede immediately the original Albanian

6 was provided to us some time ago, and of course at that stage without the

7 English translation we were unaware of its potential import. It dealt, in

8 fact, directly with yesterday's witness, who was described therein as a

9 local police officer. And there are other matters also within that

10 document that I would have wished and absolutely been duty-bound to have

11 put to that witness which would have affected not just his credibility but

12 significant aspects of his evidence in general.

13 JUDGE ORIE: Yes. I do understand that you raise the matter at

14 this moment immediately after you received the information. At the same

15 time, it cannot be repaired today. I take it that the witness has left --

16 MR. HARVEY: Well, I don't -- that's why I'm raising it now,

17 because I don't know whether he may still be in The Hague.

18 JUDGE ORIE: Mr. Emmerson --

19 MR. HARVEY: Mr. Re.

20 JUDGE ORIE: Mr. Re, yes, yes. May I take it that Mr. Re tries to

21 find out if the witness is still available; if so, that the Chamber would

22 be informed about it immediately and that we now not pursue the matter at

23 this very moment without this information.

24 MR. HARVEY: Thank you, Your Honour.

25 JUDGE ORIE: But the Chamber is always available for further

Page 5476

1 consultation.

2 MR. HARVEY: Of course.

3 JUDGE ORIE: Yes. Then we adjourn until Thursday, the 7th of

4 June, 9.00, Courtroom I.

5 Mr. Kabashi, you have given very limited evidence until now.

6 Nevertheless, I would like to instruct you that you should speak with no

7 one about the testimony you have given and the testimony that perhaps you

8 will give in the near future. I also would like to inform you that if for

9 whatever reason you would reconsider your position or change your mind,

10 that Mr. Karnavas certainly knows how to bring this to the attention of

11 this Trial Chamber.

12 We stand adjourned until the 7th of June, 9.00, Courtroom I.

13 --- Whereupon the hearing adjourned at 1.57 p.m.,

14 to be reconvened on Thursday, the 7th day of

15 June, 2007, at 9.00 a.m.