1 Friday, 19 August 2011
2 [Initial Appearance]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 10.33 a.m.
6 JUDGE ORIE: Good morning to everyone in and around this
8 Madam Registrar, would you please call the case.
9 THE REGISTRAR: Good morning, Your Honour. This is case number
10 IT-04-84-R77.1, the Prosecutor versus Shefqet Kabashi.
11 JUDGE ORIE: Thank you, Madam Registrar.
12 Could I have the appearances from the parties.
13 Prosecution first.
14 MR. MARCUSSEN: Good morning, Your Honour. My name is
15 Mathias Marcussen, and I am appearing today with Ms. Priya Gopalan and
16 Mr. Colin Nawrot as our case manager.
17 JUDGE ORIE: Thank you, Mr. Marcussen.
18 For the Defence.
19 MR. KARNAVAS: [Microphone not activated]
20 Good morning, Mr. President. Michael Karnavas on behalf of
21 Mr. Kabashi and good morning to everyone in and around the courtroom.
22 JUDGE ORIE: Thank you, Mr. Karnavas.
23 Mr. Kabashi, could I first check that you're able to follow the
24 proceedings in the language you understand?
25 THE ACCUSED: [Interpretation] Yes.
1 JUDGE ORIE: If at -- [B/C/S on English channel]
2 There is apparently a problem because I do not have --
3 [B/C/S on English channel]
4 THE INTERPRETER: Can you hear us, Your Honour?
5 Yes, I can hear you but I receive translation in another language
6 on channel 4 as well. And from the body language of other participants
7 in these proceedings, it seems to be the same.
8 Yes. Let's check again.
9 Mr. Kabashi, if at any time you're not receiving interpretation
10 or if it is difficult for you to hear the interpretation, don't hesitate
11 to let me know without delay.
12 THE ACCUSED: [Interpretation] Okay.
13 JUDGE ORIE: Then I would like to invite you to state your full
14 name for the record.
15 THE ACCUSED: [Interpretation] Shefqet Kabashi.
16 JUDGE ORIE: And what is the date and place of birth?
17 THE ACCUSED: [Interpretation] The 1st of July, 1976, Zahac, Peje,
19 JUDGE ORIE: Thank you, Mr. Kabashi.
20 Mr. Kabashi, have the authorities of the country of which you are
21 a national, have they been informed about your transfer to and your
22 detention now in the United Nations Detention Unit of the Tribunal in The
24 THE ACCUSED: [Interpretation] I did not understand. What do you
1 JUDGE ORIE: Have the authorities of the country of which you are
2 a national, to your knowledge, have they been informed about your present
3 situation, that is, being detained at the United Nations Detention Unit?
4 THE ACCUSED: [Interpretation] I don't know.
5 JUDGE ORIE: Then --
6 THE ACCUSED: [Interpretation] I have no knowledge of it.
7 JUDGE ORIE: Then I'll ask the Registry to assist you in
8 establishing communication, if you wish to do so, and at least to inform
9 the authorities of the country of which you are a national about your
10 present situation.
11 Further, did you have an opportunity to inform your family about
12 your arrest and about your present detention?
13 THE ACCUSED: [Interpretation] Yes, yes.
14 JUDGE ORIE: Mr. Kabashi, this initial appearance today is
15 governed by Rule 62 of the Rules of Procedure and Evidence, and the
16 purpose of it is to inform you of the charges against you and to ask you
17 to enter a plea and also to verify that your right to counsel is
19 Now, before I will set out the allegations that were brought
20 against you, I inform you already now that you have a fundamental right
21 to remain silent in these proceedings. Further, Articles 20 and 21 of
22 the Tribunal's Statute address the commencement and the conduct of trial
23 proceedings and the rights you have as an accused in those proceedings.
24 Your counsel will further advise you on these rights and procedures if
25 you need any further information.
1 Mr. Karnavas, have you discussed this matter already with
2 Mr. Kabashi?
3 MR. KARNAVAS: Yes, Your Honour. In fact, we've met extensively.
4 He was fully informed before leaving the United States that upon arrival
5 he would be arrested and that he would be brought before a Dutch court,
6 and thereafter he would be brought to the UNDU. He was also advised of
7 today's procedure, and I can speak for him that he will remain silent.
8 We will not enter a plea today. As I understand it, we have some time
9 before that, and he is scheduled to testify in another matter and I was
10 going to be making a request concerning that, that the testimony take
11 place on Monday as opposed to today because he's been bounced around from
12 one place to another without having access to his lawyer.
13 JUDGE ORIE: Yes. Thank you for that information.
14 The operative indictment against you, Mr. Kabashi, is dated the
15 18th of February, 2008. You were arrested this week, Wednesday, the 17th
16 of August, 2011, you were arrested in the Netherlands and you were
17 subsequently transferred to the Tribunal on the 18th of August, that was
18 yesterday. Mr. Kabashi, have you received a copy of the indictment in
19 your own language?
20 THE ACCUSED: [Interpretation] I don't know. Maybe I have. I
21 have been given something by my counsel today, but I haven't had the time
22 to look into it.
23 JUDGE ORIE: Then perhaps under those circumstances it would be
24 best that the ...
25 [Trial Chamber and Registrar confer]
1 JUDGE ORIE: I was informed, Mr. Kabashi, that when you met with
2 the Registrar yesterday that a copy of the indictment in your own
3 language was handed out to you. Does this refresh in any way your memory
4 and have you read the document that was -- which is reported to me as
5 having been handed out to you yesterday, that the indictment, just to say
6 briefly, describes the events and what you are charged with, that is that
7 you consciously failed to answer questions that were put to you as a
9 THE ACCUSED: [Interpretation] I did receive some papers
10 yesterday. I did not have the time to look into them. Your Registrars
11 were not able to speak English well enough or any other language that I'd
12 understand. As a matter of fact, I was not capable of having a proper
13 conversation with them. They said they were from the Registry and I was
14 still handcuffed at the time when they were having this conversation with
15 me, so I did not deem it to be significant enough.
16 JUDGE ORIE: Under those circumstances -- but I perhaps first ask
17 you whether you have discussed with counsel the charges that were brought
18 against you? Irrespective of whether you've read the document or not,
19 have you discussed with Mr. Karnavas what the charges against you are?
20 THE ACCUSED: [Interpretation] Yes, we have.
21 JUDGE ORIE: Now, Mr. Kabashi, we have two options. We can read
22 the indictment in its entirety to you, and you have a right to have it
23 read to you. Do you want the indictment to be read out or would you be
24 satisfied if I just very summarily inform you about what the charges are?
25 THE ACCUSED: [Interpretation] You may give me a summary, largely
1 because given that this document is in my detention room I will be able
2 to read it later.
3 JUDGE ORIE: Yes. And you have discussed the charges with
4 Mr. Karnavas?
5 THE ACCUSED: [Interpretation] Yes, we have discussed them, and I
6 think we will have plenty of opportunity to do so again.
7 JUDGE ORIE: Yes.
8 Mr. Karnavas, under those circumstances I would suggest that I
9 very briefly summarise the charges brought against Mr. Kabashi.
10 Also not only for Mr. Kabashi but also to the benefit of the
12 Mr. Kabashi, you are charged with two counts of contempt of the
13 Tribunal under Rule 77 of the Rules because you have - and that's the
14 charge - have contumaciously refused or failed to answer questions as a
15 witness in the case of the Prosecutor versus Haradinaj et al. and this
16 would have happened in June 2007 when you were present in -- before this
17 Tribunal here in The Hague. And the second count is similar, refusal or
18 failure to answer questions as a witness in that same case in November
19 2007. In November 2007 you appeared through videolink before this
20 Tribunal, where you were physically in another country.
21 These are the charges that were brought against you.
22 Mr. Karnavas, would you like me to go into any further detail or
23 would this be a sufficient summary?
24 MR. KARNAVAS: That would be sufficient, Your Honour.
25 JUDGE ORIE: Yes. Thank you, Mr. Karnavas.
1 Mr. Kabashi, pursuant to Rules 77(E) and 62(A)(iii) of the Rules
2 of Procedure and Evidence, you will be called upon to enter a plea of
3 guilty or not guilty on each of these two counts in the indictment within
4 ten days of this initial appearance. Although you may express a wish to
5 enter a plea today, I understand from the words Mr. Karnavas spoke that
6 you prefer to enter a plea later and not today. Is that well understood?
7 THE ACCUSED: [Interpretation] Yes.
8 JUDGE ORIE: Then, as I said before, you will be called upon to
9 enter a plea within ten days of this initial appearance.
10 And, Mr. Karnavas, that will most likely be on the 26th of
11 August, which is next week, Friday, so in a week from now. And the time
12 as provisionally scheduled is 12.00, therefore at noon. Does that cause
13 you any problem?
14 MR. KARNAVAS: That will be fine.
15 JUDGE ORIE: That will be fine.
16 MR. KARNAVAS: Fine.
17 JUDGE ORIE: Thank you.
18 Mr. Kabashi, meanwhile you will remain in custody at the
19 United Nations Detention Unit and Mr. Karnavas can inform you, give you
20 any information about the Rules governing your detention.
21 Then I would like to briefly address the Prosecution. I would
22 like to remind you, Mr. Marcussen, that pursuant to Rules 77(E) and
23 66(A)(i) of the Rules of Procedure and Evidence, that within ten days of
24 the initial appearance, so that's today, initial appearance of the
25 accused, that you should make available to the Defence, in a language
1 which the accused understands, all the supporting material which
2 accompanied the indictment when the confirmation was sought. I would
3 even suggest that if the material is ready that you disclose this
4 material already today so as to better enable Mr. Karnavas and
5 Mr. Kabashi to prepare for next week.
6 MR. MARCUSSEN: Thank you, Your Honour. I believe that shouldn't
7 pose any problem.
8 JUDGE ORIE: Okay.
9 Then addressing the Defence, Mr. Karnavas, perhaps unnecessary,
10 but I'd like to remind you that pursuant to Rules 77(E) and 72(A) of the
11 Rules of Procedure and Evidence that you will have a ten-day period for
12 filing any preliminary motions once you have received all the supporting
13 material, therefore likely on from today. These preliminary motions
14 include motions which challenge the jurisdiction of the Tribunal or
15 allege defects in the form of the indictment.
16 Mr. Kabashi, you are advised to consult on these matters with
17 Mr. Karnavas.
18 Mr. Karnavas, could you give us already any idea on whether
19 there's any developed thought on filing such preliminary motions?
20 MR. KARNAVAS: Your Honour, I don't believe that there will be
21 any extensive filing, if any filing at all, concerning these matters.
22 Obviously we're here, we recognise the jurisdiction of the Tribunal, we
23 understand what the charges are. We -- I have seen and looked at the
24 indictment, so I'm satisfied that --
25 JUDGE ORIE: Yes, you say "as matters stand now" you have not
1 developed any plans to file such a preliminary motion, although you still
2 have time to consider it further if you wish of course.
3 MR. KARNAVAS: All right.
4 JUDGE ORIE: Well, I think we've dealt with most, if not all, of
5 the issues apart from one, Mr. Karnavas. But before I give you an
6 opportunity to raise it, I would first like to ask the Prosecution
7 whether there's any matter they would like to raise at this moment.
8 MR. MARCUSSEN: No, Your Honour, there's not. Thank you.
9 JUDGE ORIE: Yes.
10 And before I give you an opportunity, Mr. Karnavas, I would first
11 like to ask Mr. Kabashi whether he himself wants to raise any matter
12 apart from the matter you indicated you would raise in a minute.
13 THE ACCUSED: [Interpretation] No.
14 JUDGE ORIE: Then, Mr. Karnavas, you already told me that you
15 would like to raise the scheduling of the appearance of Mr. Kabashi as a
16 witness in another case. I will give you an opportunity to further raise
17 this matter, but the first thing that came to my mind is whether I have
18 any competence to decide on timing of appearance as a witness in a case
19 in which I'm not involved.
20 MR. KARNAVAS: You have no competence, but nonetheless I would
21 like the record to be made because at some point when this hearing
22 finishes I will be meeting with the Prosecution and hopefully we will --
23 I have also informed, I should say, the Defence yesterday that it would
24 be my wish for Mr. Kabashi to testify on Monday and that I was going to
25 make the Prosecution be aware of that. And of course we need now bring
1 that to the attention of the Trial Chamber so that they would be aware.
2 But simply for the record, when Mr. Kabashi came, knowing that he
3 would be arrested - and I had been in touch with the Dutch authorities
4 prior to that, a Dutch prosecutor who was extremely co-operative and
5 seemed to know exactly what the procedure was - our expectation was that
6 he would leave from the airport and go immediately to a Dutch court and
7 thereafter he would immediately go to the UNDU. That did not occur
8 because apparently an investigative judge thought that research needed to
9 be done, and in fact even yesterday when we had this unexpected hearing,
10 because we weren't supposed to even appear before a court until this
11 morning, in a Dutch court, there was some indication that he could be let
12 out on custody by the Dutch. So in any event, then I was told he was
13 coming here yesterday immediately to the Tribunal, I assume for his
14 initial appearance. I rushed over here, found out that he went to the
15 UNDU, and then we got -- and then my appointment wasn't arranged until
16 later and then we had the Scheduling Order.
17 Be that as it may, I have not had any contact, any real contact,
18 with Mr. Kabashi, other than seeing him a little bit at the police
19 headquarters, in order to go over the material. Therefore -- and that's
20 why I want the record to be very clear that while we appeared before this
21 Tribunal at the earliest possible moment, I have not had access to
22 Mr. Kabashi to prepare him, and I think it would be fundamentally unfair
23 for him to go in court this afternoon to give evidence, considering that
24 depending on his performance in that proceeding it may impact the
25 situation before us -- before this particular proceeding.
1 JUDGE ORIE: Yes.
2 MR. KARNAVAS: So given that, I would like my client to be in the
3 best frame of mind, be prepared, and of course hopefully get everything
4 resolved within an expeditious manner.
5 JUDGE ORIE: Yes. Mr. Karnavas, of course I fully understand all
6 your considerations. As you agreed with me in the beginning, I have no
7 competence whatsoever to deal with the matter. The only thing I could do
8 is to ask the Registry to make a copy of the transcript of what you just
9 said, and of course that is not a way of introducing a matter before
10 another Chamber but it may at least assist you in presenting those
11 matters before that other Chamber, whether or not after having discussed
12 the matter with the Prosecution, Defence in that other case, I refrain
13 from that.
14 But, Madam Registrar, if it would be possible to have a printed
15 copy of what Mr. Karnavas just said to be given to your colleagues who
16 serves as a representative of the Registry in that other case. I'm not
17 competent to say to whose attention he or she should bring it, and if
18 it's you, then hand it out to yourself and see what to do with it as you
19 deem fit.
20 [Trial Chamber and Registrar confer]
21 JUDGE ORIE: We briefly move into private session.
22 MR. KARNAVAS: May I be seated, Your Honour?
23 JUDGE ORIE: Yes.
24 [Private session]
11 Page 54 redacted. Private session.
21 [Open session]
22 THE REGISTRAR: Your Honour, we're back in open session.
23 JUDGE ORIE: Thank you, Madam Registrar.
24 Mr. Karnavas, is there any other matter you would like to raise?
25 MR. KARNAVAS: Nothing, Your Honour.
1 JUDGE ORIE: Then, Mr. Kabashi, one final question for you. Are
2 there any issues in relation to your arrest and detention or in relation
3 to your health that you would like to raise at this moment?
4 THE ACCUSED: Maybe I will speak next time.
5 JUDGE ORIE: Yes, I do understand that there's no matter which
6 you consider so urgent as to raise it at this moment.
7 Then this concludes this initial appearance. I ...
8 [Trial Chamber and Legal Officer confer]
9 JUDGE ORIE: Then the proceedings are adjourned until the 26th of
10 August, 2011, at 12.00 in Courtroom I. We'll resume on that date and at
11 that time.
12 We stand adjourned.
13 --- Whereupon the hearing adjourned at 11.03 a.m.,
14 to be reconvened on Friday, the 26th day of
15 August, 2011, at 12.00 p.m.