Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Thursday, 7 June 2007

2 [Rule 77 Hearing]

3 [Open session]

4 --- Upon commencing at 9.20 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-R77.1, the contempt case of Shefqet Kabashi.

9 JUDGE ORIE: Thank you, Madam Registrar.

10 We are here today because, as it was said in the Bulatovic

11 contempt case, a Rule 77 hearing would take place, a Rule 77 hearing to be

12 understood as the proceedings with a purpose the same as the last stages

13 of the pre-trial proceedings and of the trial itself in a contempt case.

14 We see that the accused is not present, and therefore the first task for

15 this Trial Chamber at this moment is to find out what happened.

16 We have two possible sources at this moment to find out what

17 happened, that is, the Victims and Witnesses Section, who may have

18 knowledge about whereabouts of Mr. Kabashi and about recent developments

19 and communication with him.

20 And, Mr. Karnavas, you -- I don't know whether your assignment as

21 Defence counsel has been completed, but at least I do understand that you

22 act as Defence counsel for Mr. Kabashi. And within the limits of your

23 professional obligations in relation to confidentiality, the Chamber would

24 first like to invite you to see whether you can inform the Chamber that

25 the first question would be whether you received a copy of the order in

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1 lieu of an indictment which serves actually as an indictment in a contempt

2 case, in which the Chamber formulated the charges the Chamber brings

3 against Mr. Kabashi and in which he was summoned to appear today at 9.00

4 in this courtroom.

5 Could you inform the Chamber, Mr. Karnavas.

6 MR. KARNAVAS: Good morning, Mr. President, good morning,

7 Your Honours. Yes, I did receive that order. I explained to my client

8 that I would be seeing him yesterday afternoon at approximately 3.00

9 because I was scheduled to be in court the day before yesterday up until

10 7.00 and then the following -- yesterday morning I was back in court and I

11 was scheduled to do a rather complex cross-examination so I had indicated

12 to him that as soon as I would get out of court I would be with him and

13 spend several hours to go over the order, which we had anticipated, and

14 then also to prepare for the hearing.

15 I did go there yesterday. I arrived at approximately 3.15 or so,

16 but when I got there somebody from the Victims and Witnesses Section was

17 already there. She greeted me and informed me that she had arrived

18 earlier because she also understood that I would be there at approximately

19 3.00 to meet with my client and wanted to be there and she had informed me

20 that apparently his room -- there was nothing in his room other than a

21 note. I was then later on informed of the contents of the note, and

22 that's all the information that I have. I don't think it's revealed

23 anything that would --

24 JUDGE ORIE: Yes. I have one very specific question on my mind,

25 that's the following. When you made the appointment to meet with

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1 Mr. Kabashi yesterday at 3.00, that was the time of the appointment, did

2 you communicate with him by telephone?

3 MR. KARNAVAS: No, Your Honour. Right after the hearing --

4 JUDGE ORIE: Right after the hearing --

5 MR. KARNAVAS: Right after the hearing I spent approximately 10

6 minutes with him, maybe 15, again explaining to him how we would proceed

7 and I informed him that because of my schedule that I would be coming to

8 see him. So we had made that arrangement at that point in time.

9 JUDGE ORIE: Yes. Would it be right to then assume that when you

10 last had a communication with him that you were not aware of the summons

11 to appear this morning at 9.00 in this courtroom and therefore you could

12 not communicate it with him, or is this wrongly understood?

13 MR. KARNAVAS: My understanding from the hearing, Your Honour, was

14 that we would be back here at 9.00. So to me it was rather clear. I did

15 not have the order. Later on I did get the order while I was in court and

16 actually read it. I communicated to him that we would be, in fact, in

17 court today in the morning --


19 MR. KARNAVAS: -- and that's why I went to meet with him to

20 prepare for the hearing.

21 JUDGE ORIE: Yes. And did you tell him that your perception that

22 would be to answer contempt charges, or you might not have been certain

23 about it at that moment?

24 MR. KARNAVAS: Well, I -- from listening to the hearing and --

25 Your Honour, having followed the Bulatovic case somewhat, I was aware that

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1 he was going to be asked to provide certain information, and that's why I

2 had the transcript with me yesterday when I went there to go over it,

3 because I did spend approximately 30 minutes with him or 40 minutes

4 discussing in general why he was apprehensive in answering questions, but

5 yesterday I wanted to go into greater detail, but my understanding was

6 that -- what I communicated to him was basically that he was going to need

7 to give an explanation. What I did not communicate to him that the

8 parties wouldn't be here -- well, the Prosecution, I should say, wouldn't

9 be here. Because it was understood that there wasn't going to be a

10 hearing with the accused but I assumed that he understood that.

11 JUDGE ORIE: So therefore he was informed also that there was a

12 fair chance that prosecution for contempt would follow?


14 JUDGE ORIE: Thank you for that information, Mr. Karnavas.

15 [Trial Chamber confers]

16 JUDGE ORIE: Then the Chamber would like to invite

17 Ms. Wendy Lobwein, who is stand-by, as I understand, I understand, and who

18 is an officer in the Victims and Witnesses Section.

19 Mr. Karnavas, in the practice of this Chamber, officers of the

20 Tribunal are not taking an oath when they inform the Chamber. If you

21 would have any objection against such procedure, I would like to hear from

22 you. If not, we'll just proceed and ask information from Ms. Lobwein.

23 MR. KARNAVAS: I have no objection to that. I assume we're all

24 officers of the court. At least, where I come from it doesn't matter

25 whether you take an oath or not.

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1 JUDGE ORIE: Good morning.

2 MS. LOBWEIN: Good morning, Your Honour.

3 JUDGE ORIE: Just for the record you are Ms Wendy Lobwein, and

4 you're an officer, I think even the acting chief?

5 MS. LOBWEIN: Deputy chief of the Victim and Witness Section and

6 officer in charge at the moment while our chief's away.

7 JUDGE ORIE: Ms. Lobwein, two days ago Mr. Kabashi appeared as a

8 witness in the case against Haradinaj et al.

9 The -- Mr. Kabashi made a solemn declaration, answered a few

10 questions, and then we came to a point where he did not answer any further

11 questions. The Chamber then had to consider what to do, and yesterday the

12 Chamber issued an order in lieu of an indictment for contempt and expected

13 Mr. Kabashi to appear here this morning at 9.00 to answer to those

14 charges -- one charge, it was one charge and not more charges.

15 As a witness, Mr. Kabashi was ordered to keep himself available

16 for the Tribunal and not to leave the territory of the Netherlands. It

17 now turns out, as we heard from Mr. Karnavas a minute ago, that

18 Mr. Kabashi checked out of his -- at least left his hotel room empty and

19 did not appear at the time and the place where he had made an appointment

20 with Mr. Karnavas.

21 I'd like to invite you to give us any further information.

22 Mr. Karnavas told us already that when he was waiting for Mr. Kabashi,

23 that a representative of the Victims and Witnesses Section was there as

24 well and that a note was found in his hotel room. Could you give us

25 further information?

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1 MS. LOBWEIN: Yes. I might start from the Tuesday evening when

2 Mr. Kabashi had returned to his hotel after court, and that evening he was

3 seen by one of our staff. He said he was thinking of going to Germany to

4 visit relatives, and she informed him that he couldn't travel to Germany.

5 So that was the last time he was seen by our staff.

6 On Wednesday morning, our staff tried to contact Mr. Kabashi from

7 about 10.00 in the morning, and so continued to try and reach him through

8 his mobile telephone and at the hotel until -- right through until Mr. --

9 appointment with Mr. Karnavas at 3.00. It was at 3.15, it was our section

10 staff who went with the hotel staff into his room just to see if there was

11 anything missed there or there was anything there, and that was when it

12 was seen that his belongings had all gone and there was a note next to his

13 bed.

14 Since that time we've just continued to contact his mobile

15 telephone every hour through till midnight last night and this morning but

16 it's on an automatic redirect to an answering service.

17 JUDGE ORIE: Yes. Could you inform us in more detail about the

18 note that has been found in his hotel room.

19 MS. LOBWEIN: I brought the note here with me.


21 MS. LOBWEIN: It's two-sided in handwriting and on one side it

22 says: "Please give these notes to the Tribunal," and our address. And

23 the text is on the other side. And the translation done by our own staff,

24 so not the CLSS translators -- shall I read it, Your Honour?

25 JUDGE ORIE: Please do so.

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1 MS. LOBWEIN: It says: "For many reasons in this court,

2 conditions are not fulfilled for a witness to testify properly. That's

3 why I decided not to testify and to ask from Trial Chamber to release me

4 from this courtroom and to give me -- and to give the right and security

5 to go back to my family. I tell these things with full trust and

6 conscience and stay behind this request. Thank you. If the Trial

7 Chambers needs explanations, I can give them without hesitation."

8 Signature.

9 JUDGE ORIE: Thank you, Ms. Lobwein.

10 Mr. Karnavas, I don't have to give the Prosecution an opportunity

11 to make any submissions to the Chamber, since the Chamber as you may have

12 learned from the order in lieu of an indictment, the Chamber itself took

13 upon itself the task to prosecute Mr. Kabashi for -- on the charge of

14 contempt.

15 Nevertheless, the Chamber would like to invite you, in the

16 assumption - that's how I understood your appearance here - that you are

17 at least acting Defence counsel, you would take all the responsibilities

18 for being his Defence counsel, apart from administrative arrangements

19 perhaps still to be made or already made, but to submit to the Chamber

20 whatever you'd like to submit in terms of how to proceed. If you want to

21 refrain from submissions, of course you're free to do so.

22 MR. KARNAVAS: Thank you, Mr. President. At this point in time I

23 think perhaps the Chamber would be best to act on its own discretion. Of

24 course the gentleman may show up later in the day, I don't know, in which

25 case perhaps we can have the hearing at some other point. I understand

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1 that -- at least what I had communicated to him was that we needed to be

2 in court today. So I don't think -- I don't know whether he fully

3 understood that, but one can draw that conclusion. I -- but I leave it to

4 the Court's discretion, and until I'm told otherwise, I will, you know,

5 remain as his counsel unless I'm relieved by the Court or by the Registry.

6 So if he does show up, I'm available.

7 JUDGE ORIE: Thank you, Mr. Karnavas.

8 Ms. Lobwein, you have informed us -- you are not a party to these

9 proceedings so I'm not going to ask you to making any submissions. I,

10 however, would like to invite you, whenever you receive any information

11 about the whereabouts of Mr. Kabashi, to inform the Chamber without delay.

12 [Trial Chamber confers]

13 JUDGE ORIE: The Chamber is not in a position to proceed against

14 Mr. Kabashi in his absence. Trials in absentia even for contempt are not

15 known in the rules in the Statute and the rules of the Tribunal, to the

16 extent that evidence is heard in the absence of the accused, that would be

17 under Rule 61. The requirements for such a hearing are not fulfilled and

18 the Chamber does not express any opinion at this moment as to whether it

19 would be appropriate to hear any evidence in the contempt case under

20 Rule 61, but certainly that is not an option open to the Tribunal, to this

21 Chamber, perhaps never but at least not at this moment. Therefore, the

22 Chamber cannot do anything else than to adjourn sine die and consider what

23 steps to take in order to ensure that the charge of contempt will be

24 adjudicated.

25 We stand adjourned sine die.

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1 --- Whereupon the Rule 77 Hearing

2 adjourned at 9.38 a.m.