Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Friday, 26 August 2011

 2                           [Sentencing Hearing]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 3.02 p.m.

 6             JUDGE ORIE:  Good afternoon to everyone in and around the

 7     courtroom.

 8             Madam Registrar, would you please call the case.

 9             THE REGISTRAR:  Good afternoon Your Honours.

10             This is the case number IT-04-84-R77.1-S, The Prosecutor versus

11     Shefqet Kabashi.

12             JUDGE ORIE:  Thank you, Madam Registrar.

13             We -- yes.  Could I have the appearances.  Prosecution first.

14             MS. KORNER:  Good afternoon, Your Honours.  Joanna Korner,

15     assisted by Alma Imamovic-Ivanov this afternoon.

16             JUDGE ORIE:  Yes, and for the Kabashi Defence.

17             MR. KARNAVAS:  Good afternoon, Mr. President, good afternoon,

18     Your Honours.  Michael Karnavas on behalf of Mr. Kabashi.

19             JUDGE ORIE:  Yes.  And Mr. Kabashi is present as well.

20             We heard this morning the guilty plea entered by Mr. Kabashi, and

21     the usual follow-up is that the Chamber will consider whether or not all

22     the conditions are met for a finding of guilt.

23             We do not, at this moment, proceed with that, and I'd like to

24     give an opportunity to Judge Moloto, first, to address a matter he would

25     like to address.

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 1             JUDGE MOLOTO:  Good afternoon to everybody in and around the

 2     courtroom.

 3             I confirm what Judge Orie has just mentioned, that we did hear

 4     the intentions of the parties for this afternoon.  That notwithstanding,

 5     I would like to say something about how I feel about my participation in

 6     this trial.  Under Rule 15(A) of the Tribunal's Rules of Procedure and

 7     Evidence, a Judge may not sit on a trial in any case concerning which he

 8     has or has had any association which might affect his impartiality.  In

 9     such circumstances the Judge shall withdraw from the case.

10             I'm presently sitting on the Haradinaj et al retrial which

11     recently commenced.  Earlier this week, Mr. Kabashi appeared before the

12     Chamber in that case for the purposes of giving testimony.  This has

13     given rise to litigation between the parties and the matter is pending

14     before that Chamber.  Considering my involvement in the Haradinaj et al

15     retrial and the recent developments surrounding Mr. Kabashi's appearance

16     in that case, I consider it appropriate to withdraw from the present case

17     under Rule 15(A), which I hereby do.

18             I believe that it is not only a question of actual impartiality.

19     It is also a question of the appearance of impartiality.  As they say,

20     justice must not only be done; it must be seen to be done.

21             So I ask to recuse myself, notwithstanding no application by the

22     parties.

23             JUDGE ORIE:  Then Judge Delvoie would like to address a matter, I

24     think, similar to the one addressed by Judge Moloto.

25             Judge Delvoie.

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 1             JUDGE DELVOIE:  Thank you.  Good afternoon to everyone in and

 2     around the courtroom.

 3             Indeed, more or less similar address.

 4             I'm sitting on the Haradinaj retrial which recently commenced.

 5     Earlier this week, Mr. Kabashi appeared before the Chamber in that case

 6     for the purposes of giving testimony.  This has given rise to litigation

 7     between the parties and the matter is pending before that Chamber.

 8             Considering my involvement in the Haradinaj retrial, and the

 9     recent developments surrounding Mr. Kabashi's appearance in that case, my

10     concern is the integrity and the progression of the Haradinaj retrial.

11     Therefore, I consider it inappropriate to sit in the present case and ask

12     to be replaced.

13             This concludes my statement.  Thank you.

14             JUDGE ORIE:  Thank you, Judge Delvoie.

15             As matters stand now, we cannot proceed under Rule 62 bis.  What

16     we have to wait for is for the President assigning other Judges to the

17     case under Rule 15.

18             I would like to add to this the following.  This morning I said

19     that I spoke for myself, which I did.  I might have been a bit more

20     reserved in exploring the possibilities of hearing the case, would I have

21     known already the position as expressed by my colleagues at this moment.

22     They were in court.  We hardly had time to communicate, but I -- perhaps

23     I should have been more cautious in -- in already exploring with the

24     parties what the possible follow-up would be.  I apologise if that has

25     created expectations which do not became true.

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 1             At the same time, still being Presiding Judge over this case, I

 2     will try to make this case be heard as expeditiously as possible and

 3     we'll keep the parties fully informed about any development.

 4             Mr. Kabashi, this may be a bit unexpected for you, but the

 5     situation is as it is at this moment.  It also means that the detention

 6     order stands.  We'll see how we further proceed, and, as I said - and I

 7     again emphasise this to you as well - we'll try to proceed as

 8     expeditiously as possible.  That's in the interest of justice.

 9             Are there any other matters the parties would like to raise at

10     this moment?

11             MR. KARNAVAS:  I do wish to be heard because this matter was

12     brought up yesterday.  And it is disappointing that we were not informed

13     because something might have been able to happen, as far as getting two

14     other Judges; although, I do realise the Judges' position and I commend

15     them for taking that stance and perhaps having slept over the night about

16     it and thought about it they came to this conclusion.

17             Mr. Kabashi has a four-week child.  He came here with the

18     expectation of testifying to the extent that he was capable of doing so

19     and then hopefully dealing with this matter and then leaving.

20             Needless to say, I'm shocked and disappointed that we will not be

21     able to proceed today.  I realise it is not your fault.  I'm scheduled to

22     be in Cambodia tomorrow.  Because I have other matters as well.  So we

23     have -- everyone has schedules.  I don't know how long it will take for

24     the President to decide when he will be able to find other Judges to sit.

25             It does cause a tremendous amount of stress because Mr. Kabashi

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 1     is on suicide watch.  Every 30 minutes he is being woken up.  He hasn't

 2     slept since he's been in there.  He hasn't been able to purchase food

 3     because for some reason they messed up on his slips.  He spent three and

 4     a half years in a prison where he was tortured on a repeated basis, and

 5     now here we find ourselves in a situation where somebody, a witness, is

 6     trying to do the right thing, and now I feel personally responsible for

 7     convincing him to come here as opposed to fighting it in New York and not

 8     coming here.

 9             I apologise for raising my voice.  I know my client is extremely

10     hurt by what has happened right now, and perhaps my anger is, in some

11     way, comforting to him, although I know it is a displeasure to the Trial

12     Chamber.  If there is any way of knowing when we could proceed, because

13     frankly had I known we would be in this position, perhaps we would not

14     have guilty plea this morning.

15             JUDGE ORIE:  Mr. Karnavas, I'd like to add a few words.

16             First of all, the expectations that Mr. Kabashi may have had when

17     he came to the Netherlands were his expectations.

18             Second, developments in a case which I did not witness but which

19     were witnessed by my colleagues are developments for which this Chamber,

20     including my two colleagues, are not responsible.

21             You may have noticed that it -- and I think my colleagues as

22     well, have been willing to see how we could as expeditiously as possible,

23     deal with this matter.  At the same time, every Judge has his personal

24     responsibility, whether or not to recuse himself.  The Judges made

25     themselves available for this afternoon.  There was no reasonable

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 1     expectation that my colleagues would refrain from following their

 2     conscience as they did this afternoon.  I fully understand that it may be

 3     a disappointing development.  At the same time, the Tribunal is also not

 4     responsible for the three years that elapsed since Mr. Kabashi left the

 5     premises then of this Tribunal.  I'd like to have this very clear on the

 6     record.

 7             We adjourn, and, of course, you will be informed as good as

 8     possible about any follow-up of the present situation.

 9                           [Trial Chamber confers]

10             JUDGE ORIE:  Ms. Korner, although you have not indicated that you

11     would like to add something, I think I asked the parties, but I would

12     have to check that.

13             Is there anything you would like to raise at this moment?

14             MS. KORNER:  No.  Thank you very much, Your Honours.

15             JUDGE ORIE:  Thank you.

16             Then this concludes this hearing.  We adjourn sine die.

17                           --- Whereas the hearing adjourned sine die.