Tribunal Criminal Tribunal for the Former Yugoslavia

Page 73

 1                           Wednesday, 31 August 2011

 2                           [Sentencing Proceedings]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 2.32 p.m.

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

 7     courtroom.

 8             Madam Registrar, would you please call the case.

 9             THE REGISTRAR:  Good afternoon, Your Honours.

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

11     Shefqet Kabashi.

12             JUDGE ORIE:  Thank you, Madam Registrar.

13             Could I have the appearances.  Prosecution first.

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

15     assisted by Alma Imamovic-Ivanov, for the Prosecution.

16             JUDGE ORIE:  Thank you, Ms. Korner.

17             For the Defence.

18             MR. KARNAVAS:  Good afternoon, Your Honours.  Michael Karnavas

19     for Mr. Kabashi.

20             JUDGE ORIE:  Yes.  And I see that Mr. Kabashi is present as well.

21             You find a newly composed Bench before you, after Judges Moloto

22     and Delvoie had recused themselves last week.  The president, the

23     vice-president of this -- the acting president of this Tribunal has

24     assigned Judge Kwon and Judge Morrison to this case, and that's the newly

25     composed Bench you see before you.

Page 74

 1             Mr. Kabashi, during your further appearance on the

 2     26th of August, 2011, you have pleaded guilty to the indictment against

 3     you.  And pursuant to the Rules of Procedure and Evidence, the

 4     Trial Chamber must be satisfied of a number of requirements before

 5     accepting your guilty plea and entering a finding of guilt.

 6             Therefore, there may be some questions to you.  Could I ask my

 7     colleagues whether they have any questions.

 8                           [Trial Chamber confers]

 9             JUDGE ORIE:  Judge Kwon, any questions?

10             JUDGE KWON:  Mr. Kabashi, I just want to check with you whether

11     you understand that by pleading guilty you may be sentenced up to seven

12     years of imprisonment.

13             THE ACCUSED: [Interpretation] Yes.

14             JUDGE KWON:  Yes.

15             MS. KORNER:  Your Honours, I don't know how -- I'm sorry.  I

16     don't know how Your Honours intend to proceed, but I was wondering if it

17     would assist if I were to open the facts first, because there's been no

18     pre-trial brief or anything in this case because it was all dealt with

19     fairly quickly.

20             JUDGE ORIE:  Yes, I know that.  Now, usually a pre-trial brief

21     introduces the stage of the proceedings where evidence is heard before

22     you come to a finding of guilt.

23             MS. KORNER:  Exactly.

24             JUDGE ORIE:  So, therefore, if there are any relevant facts for

25     sentencing, then, of course, you could present them after there's a

Page 75

 1     finding of guilt.  If it does not -- if the Chamber finally does not

 2     enter a finding of guilt, then, of course, we would have to see how to

 3     proceed in relation to facts and law.

 4             MS. KORNER:  Right.  Your Honours, can I say that I'm a novice at

 5     this.  This is the first time that any accused that I've been -- in a

 6     case that I've been in where there's been a plea of guilty.

 7             But I was just wondering whether, for the purposes of deciding

 8     what Your Honours have to decide under the Rules, whether this is an

 9     informed plea of guilty.  Mr. Kabashi and indeed the public should hear a

10     brief summary of the facts.  That's all.

11             JUDGE ORIE:  Yes.  Let's then do the following.  Let us ask the

12     questions we would like to ask from Mr. Kabashi or perhaps even from the

13     parties.  And then -- but let me just confer with my colleagues.

14                           [Trial Chamber confers]

15             JUDGE ORIE:  The Chamber will then give you an opportunity to

16     further -- make further submissions in relation to the requirements under

17     Rule 62 bis.  That includes the factual basis for a finding of guilt.

18             Yes.  The one and only question I would have for the parties is

19     Rule 62 bis requires the chairman to satisfy itself that there is a

20     factual basis for the guilty plea.

21             May I take it that where the parties seems not to disagree on

22     this, that this is -- the factual basis is found in the transcripts of

23     the hearings in which, as alleged by the Prosecution, now, Mr. Kabashi

24     failed to answer questions, contumaciously failed to answer questions?

25             MS. KORNER:  Your Honours, that's right.

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 1             JUDGE ORIE:  And that's, for you, the factual basis as well,

 2     Mr. Karnavas?

 3             MR. KARNAVAS:  Mr. President, Mr. Kabashi has indicated that he

 4     was unable to, so effectively that would be contumaciously a refusal.

 5             JUDGE ORIE:  Yes.  That's the reason why I said "as alleged by

 6     the Prosecution."  And the guilty plea, of course, then we come to how

 7     informed it is, the guilty plea is a guilty plea to the charges as

 8     brought against Mr. Kabashi, and that is, he failed contumaciously, or he

 9     refused or failed contumaciously, to answer any questions.  So if he now

10     says, I couldn't, I didn't decide that for myself, then, of course, the

11     question arises to what extent the guilty plea is informed.

12             If you want to discuss that with your client, but, of course,

13     later to hear that it was not contumaciously would contradict the guilty

14     plea.

15             MR. KARNAVAS:  I understand, Mr. President.  Mr. Kabashi has

16     indicated over and over again that he was unable to answer the questions,

17     not that he did not want to answer the questions.  He also understands

18     the exposure that he's facing.  Now, had we been in the United States, I

19     would be entering some sort of a plea where he's entitled to maintain his

20     innocence while at the same time pleading guilty, something that is

21     relatively -- that's done usually in death penalty cases, where somebody

22     pleads guilty even though they maintain their innocence in order to avoid

23     a death sentence and instead serves a life sentence.

24             JUDGE ORIE:  Yes.

25             MR. KARNAVAS:  If we look at the way the plea -- the charge as

Page 77

 1     drafted by the Prosecution, we believe that Mr. Kabashi recognises that

 2     his failure to answer the questions amounts to a contumacious failure

 3     because he was repeatedly asked to answer certain questions.  Now, we do

 4     think that there are mitigating circumstances which go into the

 5     sentencing phase.

 6             JUDGE ORIE:  Yes, I see your point.  But let me just confer with

 7     my colleagues.

 8             JUDGE KWON:  Before that:  Mr. Karnavas, because I'm new to this

 9     case, I wonder whether your client has explained to the Chamber why he

10     was unable to give answers.

11             MR. KARNAVAS:  Judge Kwon, I was going to go into that.  Over and

12     over again, in his prior testimony in the -- when he attempted to

13     explain, he did to some extent explain, to the best that he could.  And,

14     again, he explained only last week before this -- the retrial in

15     Haradinaj.  But if I could just summarize the points.

16             If we go through the transcripts --

17             JUDGE ORIE:  Mr. Karnavas, if you would allow me to just briefly

18     confer with my colleagues.

19                           [Trial Chamber confers]

20             JUDGE ORIE:  Mr. Karnavas, you may continue your explanation.

21     But let me -- let me just briefly express the concerns of the Chamber

22     about the -- whether this is a unequivocal guilty plea.  That's the issue

23     that may arise.  But if you'd like to continue to answer the question put

24     to you by Judge Kwon, please do so.

25             MR. KARNAVAS:  And very well.  And before I get to continuing to

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 1     my answer to Judge Kwon, if you look at, Your Honours, Rule 77(A)(i), it

 2     says refuses or fails.  Or fails.

 3             So we are suggesting that there was a failure but not a refusal.

 4             JUDGE ORIE:  Mr. Karnavas, I think you plead guilty to charges

 5     brought against you and not to an Article of the Rules.  And I think the

 6     count that was read to Mr. Kabashi when he did enter his guilty pleas

 7     were the counts as we find them in the indictment.

 8             MS. KORNER: [Microphone not activated] ... refused or failed.

 9     Your Honours, it does --

10             JUDGE ORIE:  It says --

11             MS KORNER:  -- say "or failed."  "Refused or failed."

12             JUDGE ORIE:  Yes.  You would contumaciously is not related to

13     failed.  That's contumaciously refused, or failed.

14             MR. KARNAVAS:  Or failed.

15             JUDGE ORIE:  Not contumaciously failed?

16             MR. KARNAVAS:  No.  What I'm saying, Your Honour, is that he

17     didn't refuse.  He failed.  He contumaciously failed.  But didn't --

18     because he has that option.  There is the option provided.  It's -- you

19     know, it's not "and."  It's "or."

20             JUDGE ORIE:  Yes, but you say he contumaciously failed.

21             MR. KARNAVAS:  Yes.

22             JUDGE ORIE:  Not failed, but contumaciously failed.

23             MR. KARNAVAS:  I --

24             JUDGE ORIE:  Okay.

25             MR. KARNAVAS:  With all due respect, Your Honour, I don't -- I

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 1     fail to understand exactly what -- what you're driving at.  He failed.

 2     He failed in a sense that not that he refused.  That's the -- that's --

 3     if we go through the transcript, he's repeatedly telling you, Judge Orie,

 4     that it's not that he does not want to but that he cannot.  That he's

 5     unable to.  And that's why we're saying that there was a failure on his

 6     part.

 7             JUDGE ORIE:  I will let you answer -- I will let you continue to

 8     answer the question put to you by Judge Kwon.  And to what extent the

 9     problem then remains is -- we'll consider that.

10             Please proceed.

11             MR. KARNAVAS:  Thank you.

12             Judge Kwon, if we look at the transcript of 5 June 2007, there

13     are some passages that I was going to go through in my sentencing

14     remarks.  We will see over and over again Mr. Kabashi saying the various

15     reasons why he's unable.  One, he talks about there are effectively no

16     protective measures because he is aware of instances where witnesses

17     are -- things happen to witnesses.  He talks about that on more than one

18     occasion.  He talks about the fact that in the past he's provided

19     information to the United Nations investigators, to ICTY investigators,

20     and that information was never followed up on.  In other words, when he

21     did so, which was when Kosovo was very, very dangerous, he stepped

22     forward, provided information to the Kosovo police, the UN, the UNMIK

23     investigators there, and the ICTY investigators where he pointed out

24     names and places where they could find bodies and what have you, and

25     nothing was done.

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 1             In effect, he risked his life in providing this information.  He

 2     testified in Limaj.  It became well known that he was -- that he had

 3     testified.  He also describes that when he did provide a statement,

 4     because he provided a statement in 2004 twice and then again the second

 5     statement that was for the Haradinaj case, he was very disenchanted with

 6     the way the statement was cobbled together.  He was asked questions, did

 7     not tape-record it, he's provided with a summary, and the summary has all

 8     sorts of problems.  Factual problems.  And in his opinion, unfortunately

 9     and regrettably, he drew the conclusion that the investigators were

10     trying to -- to summarize or to provide a summary of his -- his statement

11     that suited their purpose as opposed to what he had actually said.

12             Now, I think what normally happens is that when statements are

13     given it's very difficult to summarize, and sometimes mistakes are made.

14     And they're honest -- they're made not intentionally, but honestly.  The

15     problem, however, is that when it's read back, it's usually months or

16     years later, because the statement is provided in the Albanian and it's

17     not until they're about to come here and give evidence that they now see

18     it in their own language and they're able to see the errors.

19             So that was one of the other reasons why, you know, he was

20     disenchanted.  He was also disenchanted with the entire process because

21     he felt, as I indicated, one, investigations weren't conducted.  Two,

22     where he was held in prison for three and a half years, or close to three

23     and a half years, he was tortured and eventually there was a massacre,

24     and that wasn't prosecuted by the ICTY.  And he was never asked about it.

25     I understand it was in the indictment.  I understand Judge Bonomy cut it

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 1     off.  But imagine deleting with just one button an event where hundreds

 2     of people were slaughtered.  And this was one of the other things that

 3     caused him concern.

 4             But when we look at his -- what he's saying, there are a lot of

 5     different things that are in his mind.  He doesn't quite come out and say

 6     that he is afraid for himself.  In fact, he says the opposite.  But on

 7     the other hand, he talks about other witnesses being killed, other

 8     witnesses who have provided evidence.

 9             Now, recently when he was asked in Haradinaj II whether he was

10     afraid for himself, he indicated no.  When asked about his family

11     members - and we have to keep in mind that he has a mother, he's got a

12     father, he's got a sister with six kids, and he's got a sister with two

13     kids living in Kosovo - the answer to that question was: I don't know.

14             Now, I ask yourselves, Your Honours, to place yourselves in his

15     position when answering these sorts of questions.  And the best that he's

16     able to say is that he's unable - he was unable back then and he's unable

17     right now - to testify.  He came here knowing that he would be arrested

18     upon arrival.  He left his two-week-old baby boy to come here hoping that

19     he would be able to find the strength to testify.  But he also suffers,

20     as we know, from post-traumatic stress disorder.  And that's the other

21     impediment, that when he comes into court, he has a physical disability.

22     He's incapable of thinking clearly, and he has this -- he's overcome by

23     emotions.  And that's the other reason why he finds it extremely

24     difficult to answer very simple questions.

25             And unfortunately he's never been treated.  He's never been even

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 1     evaluated up until I suggested that he be evaluated at the UNDU.

 2             So that's -- I trust I have answered your question, Judge Kwon.

 3             JUDGE KWON:  Just one clarification, Mr. Counsel.

 4                           [Albanian on English channel]

 5             JUDGE KWON:  The first reason you referred to is -- is page 6,

 6     line 17, one, he talks about there are effectively no protective

 7     measures.  But was it not upon his request that the protective measures

 8     were rescinded?

 9             MR. KARNAVAS:  Good question, Judge Kwon.  Very good -- excellent

10     question.  In the Limaj, he had protective measures, and yet the entire

11     world new that he testified in Limaj.  Realistically speaking, okay,

12     anybody who works in the Defence, at least, knows that protective

13     measures effectively never work.  We know that because the moment

14     somebody leaves this courtroom, they have access to telephones and access

15     to visits.  And no matter how hard we try and no matter how many

16     admonitions you give is, the fact of the matter is that the protective

17     measures don't always work.  And the fact that it was well-known not only

18     what he said but the fact that he had said it.

19             If you look at his testimony on -- on - I will point out exactly,

20     Your Honours - back in -- in open session, 5 June 2007, on pages 5437 and

21     5438, he indicates:

22             [As read] "A.  I was given this statement for a read-back on

23     Friday in the afternoon, when I just flew back from the United States of

24     America, and I did not pay ... attention, I was not in a state to pay

25     that much attention to the read-back.  But the purpose was for me to come

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 1     back here and explain to the Judges that there are no conditions for

 2     witnesses to come here and testify.  That's why, again, I would like to

 3     call to the Trial Chamber to alleviate me from giving a statement because

 4     I'm not in a position to give evidence.  I have many explanations, facts

 5     to explain.  The Judge interrupted me, didn't allow me to explain, but I

 6     would like to explain those facts because I'm the one who lives in

 7     Kosova.  I'm the one who has gone through a lot during the war, and I'm

 8     the one who is brought here to tell the truth about things that I saw, or

 9     heard somebody else," and so on.

10             And then he goes on, and I can find all -- you know, and this is

11     exactly what I intend to do this afternoon, go through all these various

12     passages.  Because what, effectively, he's saying is that there are no

13     protective measures regrettably.  And that here's a man who risked his

14     life initially to give evidence and now he is being treated like a

15     criminal.  This is how he feels today.

16             He goes on to say, on the same page:

17             [As read] "Yes, Your Honours, it is true it is our duty, but

18     within -- within the framework of a normal life.  Since this normal life

19     does not exist in the state where I live, where people get killed and

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

21     of people have changed, I don't know in what conditions I can give a

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

23     because of the things that I went through."

24             He's talking about the situation in Kosovo.  And so we have to

25     place ourselves in Kosovo.  He doesn't have, you know, any protection or

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 1     his family doesn't have, even though he doesn't live in Kosovo, he does,

 2     as I indicated, have a father, a mother, sisters, and nieces, and other

 3     family members.

 4             JUDGE KWON:  Mr. Karnavas, I understand your point and then those

 5     matters may well be the matters you deal well as a sentencing

 6     circumstances.

 7             But I also wonder whether your submission would amount to saying

 8     that your client lacks mens rea.

 9             JUDGE ORIE:  Perhaps before you answer that question,

10     Mr. Karnavas, I would like to add the following.  I'm not a native

11     English speaking person so, therefore, I immediately used my computer to

12     find out what the explanation was of "contumaciously."

13             "Contumacious" is described as obstinate; stubbornly disobedient;

14     persistently, wilfully, or overly defiant of authority.  And if you are

15     referring to Rule 77 and refer to the word "fails," may I then also draw

16     your attention - perhaps you address that in your answer as well - that

17     in 77(A), which does not exhaustively list anything but gives the general

18     description of contempt of the Tribunal, those who knowingly and wilfully

19     interfere with its administration of justice, including a person, and

20     then contumaciously refuses or fails to answer a question.

21             I understand - but it's the analysis, my provisional analysis, of

22     what contempt means in this Tribunal - that the failure to answer a

23     question should be contumaciously and, at the same time, is an example of

24     knowingly and wilfully interfering with the administration of justice.

25             So if someone fails to answer a question because he faints or if

Page 85

 1     he fails to answer a question because he totally doesn't understand the

 2     question, or -- there may be, I would say, non-intentional failures to

 3     answer questions.

 4             But that, as far as I'm concerned at this moment, seems not to be

 5     covered by Rule 77, and also is - but I'm addressing Ms. Korner - was not

 6     charged, a kind of a failure which was not contumacious or was not

 7     wilfully -- I think the charges as they are formulated require a mens rea

 8     of intent.

 9             MS. KORNER:  Your Honour, let there be no mistake that the charge

10     and the way the Prosecution put the case is that it was a wilful refusal

11     to answer questions.

12             JUDGE ORIE:  Or a failure.

13             MS. KORNER:  Or a failure.  But that it -- that whatever

14     "contumacious" may mean, which is a very, very old fashioned term,

15     indeed, Your Honours.  I'm not surprised you had to look it up.  And how

16     it got into the Rules is something of a mystery.  But it means,

17     effectively, a wilful refusal.

18             JUDGE ORIE:  Yes, yes.  I think that --

19             JUDGE KWON:  That is consistent with my earlier dissent on the

20     meaning of "contumaciously."

21             JUDGE ORIE:  Yes.

22             Mr. Karnavas, you have heard now a lot of elements which together

23     make one big question, I think.  Would you please --

24             JUDGE MORRISON:  Can I add to that.

25             JUDGE ORIE:  Yes, Judge Morrison would like to add something to

Page 86

 1     that as well, to make it even more complex.

 2             JUDGE MORRISON:  Yes.  Well, I'm hopefully going to cut a bit of

 3     the Gordian Knot.

 4             Do you accept - does your client accept - that "contumacious"

 5     attaches both to a refusal and a failure?

 6             MR. KARNAVAS:  Yes, Your Honour.

 7             JUDGE MORRISON:  Right.  It may be that a refusal to answer

 8     questions is an overt act where somebody, when asked a question, says, "I

 9     will not answer that question" or "No, I will not answer that question."

10     And a failure to answer a question may be simply staying mute, not saying

11     anything at all.  A complete failure to make any explanation of any

12     nature.

13             Now, if "contumacious" is archaic, this is certainly archaic:  In

14     English common law, one could be mute of malice or mute by visitation of

15     God.  If you were mute of malice, then you would be contumacious.  If

16     you're mute by visitation of God, then things are our of your hand;

17     you're suffering some disability over which you have no control, ergo no

18     mens rea.

19             Do you accept on behalf of your client that he had a requisite

20     mens rea to contumaciously fail in the sense that he made a deliberate

21     choice not to answer the question for whatever reasons that he may later

22     give in mitigation?

23             MR. KARNAVAS:  Yes, Your Honour.

24             JUDGE ORIE:  At the same time, I would very much like to verify

25     this also with Mr. Kabashi.  Because if it takes lawyers close to half an

Page 87

 1     hour to discuss these matters, I think that it would be important for us

 2     to know, Mr. Kabashi, whether you accept that by your guilty plea, that

 3     you have pleaded guilty to a deliberate choice not to answer questions

 4     for whatever reasons you may have had, but that it was not that you had a

 5     inability which did not allow you to answer the questions, so that it was

 6     your decision not to answer the questions.

 7             Again, for good or bad reasons, but do you accept that to be your

 8     part of your guilty plea?

 9             If you want to consult with counsel, you may do so.

10             MR. KARNAVAS:  Thank you, Mr. President.

11             THE ACCUSED: [Interpretation] Yes.

12             JUDGE ORIE:  Yes, I think ... I nevertheless give you an

13     opportunity, although the witness has answered the question, to ...

14                           [Defence counsel confer]

15                           [Trial Chamber confers]

16             JUDGE ORIE:  The answer remains "yes," even after having

17     consulted your counsel, Mr. Kabashi?

18             MR. KARNAVAS:  Yes.

19                           [Trial Chamber confers]

20             JUDGE ORIE:  I think, under those circumstances, the Chamber has

21     satisfied itself that the guilty plea has been made voluntarily, that, as

22     we now can establish, that it was informed, that it's not equivocal, and

23     that there was a sufficient factual basis for this offence, this crime,

24     and the accused's participation in it.

25             Therefore, the Chamber enters a finding of guilt, a finding of

Page 88

 1     guilt on two counts.

 2             Count 1: Contempt of the Tribunal, punishable under the

 3     Tribunal's inherent powers.  And consisting of being a witness before a

 4     Chamber in the case of Prosecutor versus Ramush Haradinaj, Idriz Balaj,

 5     and Lahi Brahimaj, that you have contumaciously refused or failed to

 6     answer questions, committed on the 5th of June, 2007, in The Hague.

 7             And we also entering a finding of guilt on Count 2.  In Count 2

 8     you were charged with having committed on the 20th of November, 2007,

 9     when testifying through videolink, therefore being a witness before a

10     Chamber in the case of Prosecutor versus Ramush Haradinaj, Idriz Balaj,

11     and Lahi Brahimaj, that you have contumaciously refused or failed to

12     answer a question.

13             It is on this basis that we will proceed.

14             Now, I have done something, Ms. Korner, which I think I promised

15     that would you have an opportunity to say something more about the facts.

16             Now that seems to be relevant for sentencing as well.  I

17     apologise for having entered a finding of guilt already on -- on the

18     charges without having given you an opportunity, as I promised, to make

19     further submissions.

20             Are you ready to make submissions and perhaps include in your

21     submissions what you had on your mind in relation to sentencing?

22             MS. KORNER:  Yes.  Your Honours, the only thing that I was going

23     do was effectively briefly open the facts of the matter to you so you can

24     see the basis on which the Prosecution brought the case against the

25     accused.  As I indicated last week, we have virtually no submissions to

Page 89

 1     make on sentence.  We leave that to the Trial Chamber.

 2             JUDGE ORIE:  Then you have to opportunity do that now.  Please

 3     proceed.

 4             MS. KORNER:  Your Honour, then, briefly, the accused,

 5     Mr. Kabashi, was born on the 1st of July, 1976, so he's now aged 35, in

 6     Zahac in Kosovo.  And as Your Honours know, he is a Kosovo Albanian.  He

 7     apparently joined the KLA in April of 1998.  And on the 22nd of December

 8     of 1998, he and the other members of his family were arrested by the Serb

 9     forces at their home.  He was imprisoned first in a place called Peje.

10     Then Dubrava.  And finally in Nis, in Serbia.  And, in fact, he was only

11     released on the 27th of March of 2002, so all together he spent a little

12     over three years, three and a half years or three and a quarter years, in

13     prison, as a prisoner of the Serbs.

14             After his release, according to his own evidence, he worked in

15     the construction industry.  Then he joined the Kosovo police.  And

16     finally left and went to the United States where he now resides and works

17     managing a restaurant.

18             Your Honours, the background to the actual failure or refusal to

19     answer questions is this.  Over a period of three days, in

20     October of 2004, he made a statement to an investigator from the

21     Office of the Prosecutor, dealing with his part in the events of 1998.

22     And at the beginning of his statement, he said that he was making it

23     voluntarily, had not been threatened or forced, nor promised -- nor

24     offered promises or incentives, and was prepared to testify before the

25     ICTY.  And he signed that statement.

Page 90

 1             Then he made a further statement on the 8th of December, 2004,

 2     which contained the same averments as though I have just read.

 3             On the 11th and 14th of March of 2005, he testified, as

 4     Your Honours have heard, with protective measures in the case against

 5     Limaj and others.  He was then interviewed again between the

 6     10th and 14th of May of 2007, this time by a mixture of lawyers and

 7     investigators from the Office of the Prosecutor, dealing with the case

 8     against Ramush Haradinaj and others.  And a consolidated statement

 9     comprising the answers that he gave in this interview and his earlier

10     statements was produced.  This was, as it were, a truncated version to

11     reflect the parts that were thought to be relevant to the Haradinaj case.

12             The statement was taken in English but translated into Albanian,

13     and both the English and the Albanian statement were signed by him on the

14     1st of June, 2007.  And he signed a declaration to the effect that he'd

15     given the statement voluntarily and was aware that he may be called to

16     give evidence in public before the Tribunal.

17             Your Honour, as regards the events that cover -- or that are

18     covered by the indictment, on the 5th of June, 2007, he was called to

19     give evidence in the trial against Haradinaj.  Prior to starting his

20     testimony, he had asked for the protective measures to be lifted.  In

21     court, having made the solemn declaration, he immediately asked to make

22     what he called a small clarification before questioning started.  He then

23     said that he had given the statement a long time ago, had given it to

24     throw light on the previous and continuing crimes in Kosovo, and that he

25     had only attended court because he had been told that if he did not

Page 91

 1     attend he would be arrested and brought to the Tribunal.  He described

 2     those words as threats from the Office of the Prosecutor.  And he was

 3     then asked if he wanted protective measures and said he did not.

 4             He was given an opportunity by the Presiding Judge to explain his

 5     position, and he said this:

 6             [As read] "As I said earlier, I do not need closed session.

 7     Everything could be in open session; however, if you want to listen to

 8     what I said earlier, in view of what has happened in my life during the

 9     war, with the events after the war, and with the investigators of the

10     Prosecutor, with things that have happened with the investigations in

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

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

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

14     do that, I can tell you I am not able.  You can take your decision, but

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

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

17     there is nothing I can do."

18             And that is the transcript of that hearing at page 5468.  That's

19     the hearing of the 5th of June.

20             He was given a further opportunity to answer questions but still

21     refused.  Mr. Karnavas, who represents him today, was appointed to advise

22     him on the basis that the Chamber warned him that they were going to

23     issue an order under Rule 77(D).  It was then decided that there would be

24     a further hearing on Thursday, the 7th of June.  On that day, when the

25     Court assembled, it was informed by Mr. Karnavas and a representative of

Page 92

 1     VWS that when they had gone to Mr. Kabashi's hotel the previous day, it

 2     was found he had left, leaving a note which read:

 3             "For many reasons in this court, conditions are not fulfilled for

 4     a witness to testify properly.  That's why I decided not to testify and

 5     to ask from the Trial Chamber to release me from this courtroom and to

 6     give me the right and security to go back to my family.  I tell these

 7     things with full trust and conscience and stay behind this request.

 8     Thank you.  If the Trial Chamber needs explanations, I can give them

 9     without hesitation."

10             And, Your Honours, it would appear that he had in fact gone to

11     Germany and from there returned to the United States.

12             Your Honour, that's Count 1.  Those are the facts of Count 1.

13             Going on to Count 2.  On the 18th of October, 2007, an interview

14     with Mr. Kabashi was actually conducted by the Trial Chamber in the

15     Haradinaj case by videolink.  He was informed he was being interviewed as

16     a suspect and was given his rights as such, and he confirmed he didn't

17     need a lawyer present.

18             He was given yet a further opportunity to explain why he didn't

19     wish to answer questions and, in particular, to explain why he did not

20     wish to -- what -- I'm sorry.  And in particular to explain what he meant

21     by threats from the OTP.  And, in effect, repeated his complaint that

22     there had been no investigation of the information he had provided to the

23     police or to KFOR.  That it was not that he was refusing to give evidence

24     but, as he said, "from what I've been through, and from observing what's

25     occurring, I have been neither morally nor physically able to do it."

Page 93

 1             He added that notwithstanding the protective measures granted to

 2     him in the Limaj case, as Mr. Karnavas has indicated, in fact,

 3     immediately after his testimony, he'd received contact and threats.

 4             He was asked towards the end of that interview whether he would

 5     be willing to answer questions if again invited to testify, possibly with

 6     protective measures or via videolink, and he said, and I quote, this is

 7     page 37 of the transcript:

 8             "No.  Not that I don't want to, but I cannot.  Whatever the

 9     circumstances you may create for me to testify, I cannot do it.  It

10     doesn't make any difference to be in a courtroom, a videolink, or secret,

11     or open.  I cannot testify over there, because there is nothing right."

12             He emphasised again that he had never personally been threatened.

13             On the 20th of November, 2007, he appeared as a witness via

14     videolink.  He was represented by counsel both, in fact, in the USA and

15     here at ICTY.  Before the solemn declaration was taken, his counsel

16     informed the court that Mr. Kabashi did not intend to give evidence.  And

17     after taking the declaration, Mr. Kabashi stated he was not prepared to

18     speak before this Tribunal.  And yet again:  "It's not that I don't want

19     to answer the questions, but I'm not in a position to speak before you."

20             Your Honours, those are the facts on which the Prosecution bases

21     the case against Mr. Kabashi.

22             In respect of sentence, as I indicated, as I said last week, the

23     Prosecution does not ask for a particular length of a custodial sentence

24     other than to say any sentence should reflect the gravity of the

25     circumstances of these offences.

Page 94

 1             Your Honours, unless there's anything else that I can assist

 2     Your Honours with, those are the Prosecution's submissions.

 3             JUDGE ORIE:  One brief question:  You say you do not ask for a

 4     particular length of a custodial sentence; does that mean that you're

 5     asking for a custodial sentence?

 6             MS. KORNER:  Yes.

 7             JUDGE ORIE:  Yes.  Thank you.  That's been clarified.

 8             I think that the Defence is ready to make sentencing submissions.

 9             Now, earlier, Mr. Karnavas, there was an issue of calling a

10     character witness.  Could you inform the Chamber whether you still intend

11     to call a character witness.

12             MR. KARNAVAS:  Regrettably he's unavailable at this time.  He had

13     to return because of Hurricane Irene.

14             JUDGE ORIE:  Yes.  Which -- then, of course, the question remains

15     whether under those circumstances you would like to -- us to adjourn so

16     as to give you an opportunity to -- [Overlapping speakers] ...

17             MR. KARNAVAS: [Overlapping speakers] ... no, we want to proceed.

18             JUDGE ORIE:  You want to proceed.

19             MR. KARNAVAS:  We want to proceed.

20             JUDGE ORIE:  Yes.  Could I --

21             MR. KARNAVAS:  I did have contact with the witness, and it was a

22     decision that we had made, and it was made with Mr. Kabashi.  In fact, I

23     took instructions from Mr. Kabashi on that matter.  Regrettably he is not

24     here.

25             JUDGE ORIE:  Yes.

Page 95

 1             MR. KARNAVAS:  Although in the meantime we did receive a report

 2     from --

 3             JUDGE ORIE:  Could I just -- could I just -- I don't know whether

 4     you are about to start with your sentencing submissions.  If you are at

 5     that point, I would like to invite you to clearly indicate if there's any

 6     factual matter on which you disagree with the Prosecution and to refrain

 7     from repeating them to the extent you do not disagree.  And, further, I

 8     would also invite you to clearly keep in mind the discussion before and

 9     the final result of that, that is, about the mens rea of contact.  That

10     has now been clearly established where we are in this respect.

11             Apart from that, unless there are any other wishes or comments,

12     you may proceed.

13             MR. KARNAVAS:  Thank you, Mr. President.

14             Had I any objections to the facts as outlined by the Prosecution,

15     I would have already made that clear on the record.  I think it's an

16     accurate and fair representation of the facts, Your Honour.

17             I would have put the accent or focus on some other matters,

18     but that's why I'm on the Defence.

19             JUDGE ORIE:  That goes without saying.  Yes.

20             MR. KARNAVAS:  As you -- I trust Your Honours have received the

21     report from Dr. Falke based on the psychiatric evaluation that was done

22     with Mr. Kabashi at the UNDU.  It is brief, and regrettably we didn't

23     have time to arrange for the psychiatrist to come here, and Dr. Falke

24     does summarise it.  But basically the end result of this entire

25     evaluation is that Mr. Kabashi suffers from post-traumatic stress

Page 96

 1     disorder, and I think that's something that needs to be taken into

 2     consideration.

 3             It is our position, Your Honour, that Mr. Kabashi should serve no

 4     more time than what he has already served.  Effectively, if you consider

 5     good time, he would have served three weeks.  He's been incarcerated now

 6     for two weeks at the UNDU, and so when considering that one would -- with

 7     good behaviour, the one-third, we would argue that effectively he has

 8     served three weeks.

 9             However, when you look at Mr. Kabashi as an individual, his

10     background, his experience, and the fact that he does suffer from

11     post-traumatic stress disorder as a result of being a prisoner of war

12     where he was tortured, where at night he would be woken up to be beaten,

13     where now he is segregated at the UNDU and on suicide watch and woken up

14     every 30 minutes in the middle of the night to make sure that he's awake,

15     that he's alive, that, I suggest, Your Honours amounts to a much more

16     severe sentence than three weeks.  I would suggest that we're talking

17     months, the experience that Mr. Kabashi has undergone even in those two

18     brief weeks that he's been at the UNDU.

19             Mr. Kabashi left New York to come and testify here, knowing full

20     well that upon arrival he would be arrested --

21             JUDGE ORIE:  One second, please.

22                           [Trial Chamber confers]

23             JUDGE ORIE:  Please proceed, Mr. Karnavas.

24             MR. KARNAVAS:  Mr. Kabashi left New York to come here and to try

25     to testify in the Haradinaj case, knowing full well that there was an

Page 97

 1     arrest warrant and that he would be arrested on sight and that he would

 2     be taken to the UNDU.  Prior to arriving here, he had met with the Office

 3     of the Prosecutor in New York.  I was present.  In fact, he met with him

 4     twice.  It was explained to him exactly what they wanted to do.  He knew

 5     that no promises were being made.  That irrespective of his testimony, no

 6     matter how glowing the testimony would be, and pleasing to the ears of

 7     the Prosecution, that there was no guarantee and certainly no assurances

 8     were ever made that the contempt charges would be purged.  I want to make

 9     that very, very clear on the record.

10             He nonetheless voluntarily came, even though he did have an

11     option, and the option was to fight it.  Before somebody is transferred

12     here on a summons, one does have the ability and the right to challenge

13     it in the courts.  And at least from my experience, I'm convinced that

14     had Mr. Kabashi chosen to challenge this, given his -- the fact that he

15     had been evaluated to have post-traumatic stress, and had he chosen to

16     take that option to fight it, more likely than not a judge would not have

17     signed off on him to be extradited to testify, knowing that he would be

18     put in prison, and knowing that he would suffer in the manner in which he

19     is suffering right now as a result of having that ordeal of three and a

20     half years as a prisoner of war.

21             When Mr. Kabashi left, his son was two weeks old.  He left his

22     son, his three daughters, and his wife, and he came to testify, knowing

23     that these charges -- he would have to face these particular charges and

24     knowing that the possibility existed, the real possibility existed, that

25     he would be sending some time in prison.

Page 98

 1             Now, this -- often this debate of whether the Judges should fit

 2     the punishment to the offender or whether they should fit the punishment

 3     to the crime.  This is more of an academic debate.  If we look at the

 4     Statute, Article 24(2) seems to take it -- to approach it from both

 5     angles.  It reads:

 6             "In imposing the sentence, the Trial Chamber should take into

 7     account such factors as the gravity of the offence and the individual

 8     circumstances of the convicted person."

 9             And unlike in the United States in the federal courts where at

10     one point we had the sentencing guide-lines, where effectively it took

11     away any discretion from the judges.  Where they just looked at a grid

12     and said, "Okay, this is the crime, this the time," here, the Judges do

13     have the discretion.  Unfortunately, the Statute doesn't provide the sort

14     of guide-lines that one might find in national jurisdictions, the sort of

15     guide-lines that a judge would look at in framing a particular sentence.

16             And so just for the sake of this particular hearing, because,

17     like Ms. Korner, I too am a novice at pleading people out here in this

18     particular court, although I pled out hundreds if not thousands of

19     individuals in my previous life in the United States as a public

20     defender.  In my particular jurisdiction, here are the sort of factors

21     that a judge looks at, and I'm speaking about the State of Alaska, where

22     I used to practice.

23             One: The seriousness of the accused's present offence in relation

24     to other offences.  Two: The prior criminal history of the accused and

25     the likelihood of rehabilitation.  Three: The need to confine the accused

Page 99

 1     to prevent further harm to the public.  Four: The circumstances of the

 2     offence and the extent to which the offence harmed the victim or

 3     endangered the public safety or order.  Five: The effect of the sentence

 4     to be imposed in deterring the accused or other members of society from

 5     future criminal conduct.  Six: The effect of the sentence to be imposed

 6     as a community condemnation of the criminal act and as a reaffirmation of

 7     societal norms.  And, finally: The restoration of the victim and the

 8     community.

 9             In this particular case, and in cases where we're dealing with

10     contempt, I would venture to say that deterrents is perhaps the one that

11     is most important.  Certainly not retribution, but deterrence.  And

12     Deterrence in what sense?  I think the charge of contempt obviously is

13     rather significant, because otherwise courts can't function if witnesses

14     or individuals behave as they will in courts.

15             And, of course, the Prosecution perhaps chose not to drop the

16     charges, even though Mr. Kabashi came and tried his best to testify in

17     the Haradinaj case, because they certainly didn't want to leave a legacy

18     behind that one can be in contempt and then it would simply go away.  Not

19     that they want to send a message, but they certainly want to make sure

20     that there is some sort of a deterrent factor.

21             But as you well know, Your Honours, sentencing needs to be

22     individualized.  And so we have to look at the individual himself.  And

23     who is this individual?

24             Now, I've read a little bit from the transcript.  I just want to

25     point out one more passage, because I think the message we all have

Page 100

 1     already, as far as what happened and what are the -- and how we arrived

 2     over here.  But on page 5439 of the Haradinaj case, back on 5 June 2007,

 3     Mr. Kabashi says:  "Your Honour, but it is not a matter of fear."

 4             But then he goes on:

 5             [As read] "I'm disappointed, and not only disappointed, but

 6     certain things that should not happen and should be done in modern world

 7     have happened.  You, yourselves, may not have come across such things,

 8     but there were persons who were asked questions as witnesses and whose

 9     names don't even appear on witness lists because they have been killed.

10     I don't want protective measures because such measures do not exist in

11     reality; they only exist within the boundaries of this courtroom, not

12     outside it."

13             I leave it to Your Honours to read between the lines of this,

14     considering the circumstances and the charges in the Haradinaj case, and,

15     of course, some of the comments that were made in the transcript -- in

16     the Judgement itself, as far as some of the shortcomings with the

17     evidence in that particular case.

18             Whether the Prosecutor threatened Mr. Kabashi or not, I would

19     suggest that it is often the case where a Prosecutor may advise a witness

20     that they have to tell the truth otherwise they may be held, you know,

21     they may be charged with perjury.  And depending on how it comes across,

22     and anyone who would know Prosecutor Re at the time, you know, I think

23     he, at times, lacked bedside manners, perhaps may have conveyed it in

24     such a way that it was taken as a threat.  Maybe that was not his

25     intention, but that's how it was perceived by Mr. Kabashi, especially

Page 101

 1     after Mr. Kabashi had done so much to assist in exposing crimes that had

 2     been committed.

 3             Now, who is Mr. Kabashi?  Well, as Ms. Korner indicated, he had

 4     joined the KLA.  He has been imprisoned.  And he did provide information

 5     very early on, as I've indicated, to the Kosovar authorities, to UNMIK,

 6     and to the ICTY investigators.  Perhaps - and this is something that we

 7     come across quite often - perhaps his expectations were somewhat

 8     unrealistic or perhaps unattainable, that things would happen much

 9     quicker, that everybody would be arrested that he pointed out to or that

10     investigations would be done as he had wished, and that the events in the

11     camp, in the Dubrava prison where there was that massacre, that that also

12     would be investigated and prosecuted properly.

13             Perhaps those expectations were overly high and they were not

14     met, and that feeds into this complex situation which we find ourselves.

15     There is some fear.  There's PTSD.  There's disappointment.  But the

16     bottom line is, this is the same individual who also testified and gave a

17     statement to the effect that when he was a KLA and was given a direct

18     order to go someplace and execute somebody, he went to that place and

19     warned the individual that he was there to do the execution and that the

20     individual should -- should leave.  This is who Mr. Kabashi is.  He's a

21     man of character.

22             Now, over the past three weeks, because this case has literally

23     consumed me for the last, I would say month, actually, three weeks here

24     in The Hague and one week in the US.  Although I have known Mr. Kabashi

25     earlier, I really didn't spend much time.  And during the preparation and

Page 102

 1     while he was getting ready to testify, I urged Mr. Kabashi to go in the

 2     court and to just answer the questions.  And the constant refrain was,

 3     You just don't understand what I'm feeling when I walk into that

 4     courtroom.  I don't -- you don't -- you cannot possibly understand.  And,

 5     of course, arrogant as I was, would respond, Yes, I do.  But how is it

 6     possible that I could understand what goes on into Mr. Kabashi's mind and

 7     how he's feeling and what reactions he's going to have when I, in fact,

 8     have not walked in his shoes?

 9             When I was preparing for these -- for -- for these submissions, I

10     was reminded of that classic line from the movie "To Kill a Mockingbird."

11     You have this wonderful defence lawyer, Atticus Finch, who would talk to

12     his daughter and in that case he's asked -- she's asking him some

13     questions about the accused.  And he says, "You never really understand a

14     person until you consider things from his point of view -- until you

15     climb into his skin and walk around it [sic]."

16             Well, I've tried.  The simple principle of wisdom from

17     Atticus Finch reflects, in my opinion, an uncomplicated matter, a

18     principle by which Your Honours should be guided in sentencing

19     Mr. Kabashi.  I have struggled, with limited success I might say, to put

20     this principle in practice while representing Mr. Kabashi.  You, however,

21     are much more wiser and experienced, and I'm sure you will succeed where

22     I have failed.

23             Mr. Kabashi is 35 years old.  He is a child -- he is a -- he

24     comes of a big family, one of seven children.  He has two brothers in the

25     United States, a sister -- two sisters in Europe, and, as I've indicated,

Page 103

 1     two sisters living in Kosovo, one with six children, the other one with

 2     two, and his parents.  He's tried to -- he went to the United States on

 3     asylum, and he's trying to start his life all over again.  His brother

 4     was here to give evidence, and had he been here he would have testified

 5     as to how Mr. Kabashi struggles today to even describe the events that he

 6     went through both as a KLA and while he was in -- in prison.  And I think

 7     now they do understand that he does need to be evaluated properly and

 8     treated properly.

 9             In closing, I just want to say one thing, Your Honours.  And I

10     have been practicing law for close to 30 years.  You know, mostly as a

11     public defender, a federal defender, defence lawyer, and it's been a

12     humbling experience.  Mr. Kabashi has character.  Give him a sentence

13     that allows him to go home as quickly as possible.

14             Thank you.

15             JUDGE ORIE:  Thank you, Mr. Karnavas.

16             First, Ms. Korner, is there any need to respond?

17             MS. KORNER:  No, we don't wish to address Your Honours again.

18     Thank you.

19             JUDGE ORIE:  You don't want to address us again.

20             JUDGE KWON:  May I pose a question to Mr. Karnavas.

21             Page 24, line 19, you said that the Prosecution didn't drop the

22     charge even though Mr. Kabashi came and tried his best to testify in the

23     Haradinaj case.

24             Could you expand on your submission that he tried his best to

25     testify.

Page 104

 1             MR. KARNAVAS:  Yes.  Over a period of three days, we appeared in

 2     court - on Monday, Tuesday, and Wednesday - and Mr. Kabashi was asked a

 3     series of questions, which, again, he was -- he found himself unable,

 4     because of the physical reaction and what have you, to answer them at

 5     least to the satisfaction of the Prosecution.  I know the Prosecutor had

 6     many, many more questions to ask.  And he was unable to answer them.  He

 7     did answer enough questions, however, that allowed the Prosecution to get

 8     his previous testimony from the Limaj case, or at least to attempt to get

 9     it - and I don't -- I think the decision is still pending - to get it in.

10     And I mentioned that because it would be -- it would be false if I were

11     to say that he came and he testified and he gave this glowing testimony

12     and therefore the Prosecution should rethink their position.  That's not

13     the case.

14             I think if you look at Mr. Kabashi today and you look at him back

15     when I first met him in the Haradinaj I, mentally he still has that

16     inability.  I think the problem is that he's never been properly

17     evaluated and, in fact, up until recently wasn't even aware that there

18     are ways of coping with whatever it is that's bothering him.  But he made

19     an attempt.  He answered some questions, enough questions for the

20     Prosecution to get the transcript in.  The Defence were offered an

21     opportunity to cross-examine.  They chose not to cross-examine

22     Mr. Kabashi.  Mr. Kabashi never indicated to the Defence that he would

23     not answer their questions.  But I know that the Prosecutor handling the

24     case felt that Mr. Kabashi could have done better.

25             And this is based on three days of being in New York, where

Page 105

 1     Mr. Kabashi made himself available to the Prosecution to go over his

 2     previous statements and the testimony.  And even there, there was some --

 3     Mr. Kabashi had made it clear to the Prosecution that he was not making

 4     any guarantees of how well he would be able to perform in court, although

 5     he did guarantee that he would come, that he would abide by the summons,

 6     and he came voluntarily.

 7             JUDGE ORIE:  Any further questions?

 8             Yes.  Judge Morrison has one question.

 9             JUDGE MORRISON:  Mr. Karnavas, as far as extradition is

10     concerned, perhaps you can assist us to the law which applies,

11     Mr. Kabashi is not a US citizen; he is living in the United States as an

12     asylum-seeker?

13             MR. KARNAVAS:  Yes.

14             JUDGE MORRISON:  But he would nevertheless be entitled to the

15     provisions of the extradition laws of the Unites States.

16             MR. KARNAVAS:  Absolutely.  In fact, in order for him to come

17     over here, the Homeland Security office had to provide him with

18     travelling documents.  But he was fully represented by a federal

19     defender, and we did do some research in this area.  The law has changed

20     somewhat.  Up until, I would say, a few months ago, the US would not even

21     consider honouring a summons for a witness.  Although now it has changed.

22     But, absolutely, he would be available to all the -- just like an

23     American citizen.

24             JUDGE MORRISON:  So had he chosen to do so, he could have

25     exploited - and I don't use that word pejoratively, I mean it in its

Page 106

 1     other sense - all available avenues under the extradition laws.  And

 2     we -- I know in the United Kingdom that would take months, if not years.

 3     And presumably in the States a similar time-scale would have applied.

 4             MR. KARNAVAS:  Exactly, Your Honour.  And we did discuss this

 5     with Mr. Kabashi.  This was an option.  The federal defenders in New York

 6     are well-funded, well-resourced, excellent lawyers, and they go into

 7     court -- federal court and handle these matters all the time, so it

 8     wasn't as if he did not have the proper advice.  He was fully aware of

 9     that option.  And this is why I say it has been a humbling experience

10     because Mr. Kabashi showed his true character when he said:  Okay, I know

11     I will be arrested, I will try to give evidence, I know that I have done

12     wrong by walking away when His Honour Judge Orie allowed him to leave the

13     courtroom to come back another day, and never did.  So he -- that, to me,

14     demonstrates and should demonstrate to you, Your Honours, Mr. Kabashi's

15     character.

16             JUDGE MORRISON:  Thank you.

17             JUDGE ORIE:  Yes.  I'd like to add one word, Mr. Karnavas, since

18     you refer to it.  Of course, walking away is not part of the charges

19     brought against Mr. Karnavas [sic] that should be clear.

20             That's on the record.

21             Then before I invite Mr. Kabashi and ask him whether he --

22     there's anything he would like to add to what you've said already,

23     there's a simple technical matter.  Medical reports.  You have provided

24     courtesy copies to Chamber staff on medical reports which are over a

25     couple of years.  And there is also another -- I thought the latest was

Page 107

 1     from 2011.  That's -- but you also have provided us with the -- a report

 2     by Dr. Falke.  What's the technical way of putting that on the record?

 3     Would you want to have them admitted as evidence relevant for sentencing?

 4             MR. KARNAVAS:  Yes, Your Honour.  We did provide a copy to the

 5     Prosecution.  Mr. Kabashi has indicated that he has no objections to it

 6     being discussed in the public as well.  So if you wish to ask him

 7     questions on that ...

 8             JUDGE ORIE:  No, it's mainly a matter on how --

 9             MR. KARNAVAS: [Overlapping speakers] ... yes, you want that as

10     part of the record --

11             JUDGE ORIE: [Overlapping speakers] ... to have them to be part of

12     the record.

13             MR. KARNAVAS:  Yes.

14             JUDGE ORIE:  And if would you have any spare copies, I would

15     invite Madam Registrar to assign exhibit numbers to them and -- do you

16     have any spare copies?

17             MR. KARNAVAS:  I should have.  I did provide a spare copy,

18     Your Honour.

19             JUDGE ORIE:  Yes.

20             Madam Registrar, did you receive it?  We have two -- the first is

21     a report by Dr. Falke, dated the 31st of August, 2011.

22             Madam Registrar, is there a copy available to you?

23             THE REGISTRAR:  Yes, Your Honours, I have that with me.

24             JUDGE ORIE:  Would you please assign a number and then it would

25     be Defence number.

Page 108

 1             THE REGISTRAR:  Your Honours, that would then be Exhibit D1.

 2             JUDGE ORIE:  D1.  D1 is admitted into evidence.  And from what I

 3     understand, Mr. Karnavas, there is no need to have it under seal.  Or

 4     would you -- although we could discuss it in open session, would you

 5     nevertheless would like to have this privacy-sensitive document under

 6     seal?

 7             MR. KARNAVAS:  Yes.  Yes, Your Honour.

 8             JUDGE ORIE:  Yes, you have said something about it in open

 9     session.  Let me just ...

10             MR. KARNAVAS:  Well ...

11                           [Trial Chamber confers]

12             JUDGE ORIE:  Yes, Mr. Karnavas.

13             MR. KARNAVAS:  Yeah.  I spoke with Mr. Kabashi.  He -- as I've

14     indicated, he has no objections to putting it on the ELMO and you can

15     discuss it with him if you wish.  So there's no need to keep it

16     confidential.  The think that the whole point --

17             JUDGE ORIE:  Then it is admitted as a public exhibit.

18             Then the small set of medical reports which you --

19             MR. KARNAVAS:  That would -- I would ask that those be kept

20     confidential, Your Honour.

21             JUDGE ORIE:  Okay.

22             Madam Registrar, have you received a copy of those?

23             MR. KARNAVAS:  I sent it to -- I sent it last week.  They should

24     be available.

25             JUDGE ORIE:  I'll ask Chamber's staff whether there is any copy

Page 109

 1     available.

 2             MR. KARNAVAS:  I know the ...

 3             MS. KORNER:  Your Honours, I have a copy if anybody needs it,

 4     which I don't need.

 5             MR. KARNAVAS: [Overlapping speakers] ...

 6             JUDGE ORIE:  Madam Registrar, if we admit something into

 7     evidence, then, of course, the Registry should know what it was that was

 8     admitted into evidence.

 9             And the Bench has one spare copy, apparently.

10             Madam Registrar, that set of medical information would receive

11     what number?

12             THE REGISTRAR:  Your Honours, that would then be Exhibit D2,

13     under seal.

14             JUDGE ORIE:  D2 is admitted into evidence, under seal.

15                           [Trial Chamber confers]

16             JUDGE ORIE:  Mr. Kabashi, is there anything you would like to add

17     to what has been said this afternoon, also in addition to what

18     Mr. Karnavas has told us?

19             THE ACCUSED: [Interpretation] Yes, thank you.

20             JUDGE ORIE: [Microphone not activated] ... then please --

21             THE ACCUSED: [Interpretation] Thank you very much for the

22     opportunity you've given me.

23             I believe that everyone understands the situation and everything.

24     But I wanted to apologise to Your Honours and to the Tribunal for the

25     problems that I may have caused, starting from 2007.

Page 110

 1             I apologise that I haven't been as useful as I should have been.

 2     And contrary to the strong desire that I have to go back to my family, I

 3     respect and accept any decision that will be taken by this Court in

 4     respect of the law.

 5             Thank you.

 6             JUDGE ORIE:  Thank you, Mr. Kabashi.

 7             This means that this sentencing hearing is about to be concluded.

 8             The Chamber will have to consider all the submissions made by the

 9     parties.  The Chamber, in that respect, will also consider, as far as

10     timing is concerned, whether a Judgement at a later day would be unfair

11     to Mr. Kabashi, because he has spent some time now in detention.  At the

12     same time, we still have to consider what sentence we would impose.

13             Now - and I'm very cautious in saying this - I would not exclude

14     for the possibility that sentence would be pronounced later today, but

15     this is, not excluding for a possibility, is far away from doing so.

16             We'll consider that.  We'll inform the parties as soon as

17     possible.  And let me just confer for one minute with my colleagues.

18                           [Trial Chamber confers]

19             JUDGE ORIE:  Because it's all rather vague what I said, we'll

20     take a break and we would like to resume in 15 minutes and most likely we

21     could be more concrete at that moment, as I tried to be a minute ago.

22             We will take a break.  And we'll resume at -- if that's possible,

23     as far as tapes are concerned, at five minutes past 4.00.

24                           --- Recess taken at 3.49 p.m.

25                           --- On resuming at 4.11 p.m.

Page 111

 1             JUDGE ORIE:  The Chamber has considered how to proceed in this

 2     case, and we have decided, although it's in need of further verification

 3     as far as availability of courtrooms, et cetera, that we are expecting to

 4     issue a Scheduling Order for the pronouncement of Judgement, which would

 5     then be on the Friday, the 16th of September, at 3.30 in the afternoon.

 6     But, as said before, we have to check all the practicalities of such a

 7     Scheduling Order.

 8             The Detention Order is not lifted, which means that Mr. Kabashi

 9     will remain in the UNDU at least until the 16th.

10             We, therefore, adjourn, and most likely will resume on Friday,

11     the 16th of September, at 3.30 p.m.; courtroom still to be determined.

12             Mr. Karnavas.

13             MR. KARNAVAS:  Just one -- one clarification.

14             I may not be here.  I assume that the court would not object to

15     me participating by videolink.

16             JUDGE ORIE:  If that would -- [Overlapping speakers] ...

17             MR. KARNAVAS:  I'm scheduled -- [Overlapping speakers] ...

18             JUDGE ORIE:  Via videolink, yes.  Yes, I -- the only -- you're

19     excused for not being present.  And what would be the most appropriate

20     solution -- I mean, there is not much else to do than to hear the

21     judgement being pronounced.  So whether you would seek replacement and

22     receive a telephone call immediately afterwards or whether you would --

23     whether we could easily set up a videolink is -- again, are

24     practicalities.  I've got no idea about costs involved.  But you are

25     excused.  We do understand that you have duties elsewhere and that we are

Page 112

 1     trying to find a practical solution for your absence, if that would be --

 2             MR. KARNAVAS:  Very well.

 3             JUDGE ORIE:  -- acceptable.

 4             Then we adjourn until that date.

 5                            --- Whereupon the hearing adjourned at 4.15 p.m.,

 6                           to be reconvened on Friday, the 16th day

 7                           of September, 2011, at 3.30 p.m.