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
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 --
10 JUDGE ORIE: Yes.
11 MR. RE: -- so maybe Your Honour doesn't need to see me as much.
12 JUDGE ORIE: Yes.
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,
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
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
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
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
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
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
1 comes into sharp focus since there will be passages of the transcript the
2 admission of which remains an issue in contention.
3 JUDGE ORIE: Yes.
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
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
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.
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,
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.
11 JUDGE ORIE: Yes.
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 --
16 JUDGE ORIE: Yes.
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
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]
11 Pages 5418-5434 redacted. Private session.
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
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
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.
16 WITNESS: SHEFQET KABASHI
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?
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
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
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
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
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
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
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
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
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
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 --
22 JUDGE ORIE: Yes.
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
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
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
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
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
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.
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
1 MR. EMMERSON: Yes.
2 JUDGE ORIE: Yes.
3 MR. EMMERSON: And for the parties to have an opportunity to
4 collect their thoughts and perhaps to have inter partes discussions --
5 JUDGE ORIE: Yes.
6 MR. EMMERSON: -- for ten minutes or so and then for the Bench to
8 JUDGE ORIE: Yes.
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.
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
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
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.
1 JUDGE ORIE: Mr. Guy-Smith, Mr. Harvey, anything to add?
2 MR. GUY-SMITH: No.
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
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.
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
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
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
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
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
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
1 cannot. I apologise.
2 JUDGE ORIE: Do I understand that you will not respond to her
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 --
22 JUDGE ORIE: Yes.
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
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
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.
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
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
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 --
22 MR. EMMERSON: Yes.
23 JUDGE ORIE: -- and that no final decisions at this moment are
24 made but --
25 MR. EMMERSON: That was all --
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
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.
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.
15 JUDGE ORIE: Yes.
16 Then we'll adjourn until 20 minutes past 1.00, and then we'll
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?
1 THE WITNESS: [Interpretation] Yes.
2 JUDGE ORIE: 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 --
12 JUDGE ORIE: Yes.
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.
1 JUDGE ORIE: Yes. That is, basically his position has not changed
2 compared to the position he took before the break?
3 MR. KARNAVAS: Yes.
4 JUDGE ORIE: Yes.
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
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
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.
11 MR. EMMERSON: Yes.
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
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.
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.
13 JUDGE ORIE: Yes.
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
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 --
11 JUDGE ORIE: Yes.
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
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
20 MR. KARNAVAS: Very well, Your Honour. I'll leave it at your
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
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
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.
12 JUDGE ORIE: Yes.
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
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
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
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.