Witness Refuses to Testify in Haradinaj Trial

Friday, 26 August, 2011

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Rachel Irwin

Senior Reporter

A key prosecution witness in the partial retrial of former Kosovo prime minister Ramush Haradinaj refused to answer most of the questions put to him this week, and pleaded guilty to contempt charges stemming from the original trial at the Hague tribunal.

“Don’t ask me to answer questions. This is rubbish!” witness Shefqet Kabashi exclaimed after several tense exchanges with prosecuting lawyer Paul Rogers.

“This money [spent on the trial] could have been sent to Hollywood to make a good movie to understand what has occurred,” Kabashi remarked. “There is no justice. Take me into prison and keep me there if you like.”

Kabashi, a former member of the Kosovo Liberation Army, KLA, was called in 2007 to testify in the original proceedings against Haradinaj, a former KLA commander, and his two co-defendants Idriz Balaj and Lahi Brahimaj, who were also KLA members. 

Kabashi refused to answer questions on two occasions in 2007 and was subsequently charged with contempt. He voluntarily travelled to The Netherlands last week, was arrested by Dutch authorities upon his arrival and then was transferred to the United Nations Detention Unit. On August 26, he pleaded guilty to the charges against him. 

It is unclear whether Kabashi will face additional contempt charges stemming from his refusal to answer questions in the retrial this week, but he had sharp words for all the parties involved.

“Your investigators are even worse than the Serbs,” he told Rogers. “[The Serbs] beat you up but these ones here drain your blood slowly.”

He also said that the prosecution’s investigators “have made many mistakes – mistakes that cost human lives”.

Kabashi further contended that the “millions” of euros that defence teams received for representing Haradinaj, Balaj and Brahimaj “would be best spent in Kosovo” on people who were “maimed and lost their loved ones”.

“You are prosecution today and defence tomorrow,” he said. “You don’t care who was killed where.”

Kabashi’s lawyer, Michael Karnavas, told judges that his client was held as a prisoner-of-war in a Serbian prison for three years and subjected to torture.

“There is a sense of frustration,” Karnavas said. “He gave information to authorities [about his imprisonment] and they did zero. He feels a sense of betrayal.”

In 2008, Haradinaj was acquitted of all 37 counts against him, which included the murder, torture and rape of Serb civilians as well as of suspected Albanian and Roma collaborators during the late Nineties conflict in Kosovo.

Balaj was also acquitted at that time, while Brahimaj was found guilty of cruel treatment and torture and sentenced to six years in prison.

Prosecutors appealed against the acquittals, claiming that the trial had been “infected” by witness intimidation. As a result of this, they said, they were unable to secure the testimony of two key witnesses, one of them Kabashi.

In their July 2010 judgement, appeals judges found that trial judges had “failed to appreciate the gravity of the threat of witness intimidation posed to the trial’s integrity” and placed too much emphasis “on ensuring that the prosecution took no more than its pre-allotted time to present its case… irrespective of the possibility of securing potentially important testimony”.

They ruled that Haradinaj and Balaj should be retried on six counts of murder, cruel treatment and torture, and Brahimaj retried on four of those counts.

All of the current charges concern the KLA headquarters in Jablanica, which prosecutors say was used to beat, torture and imprison those who were or perceived to be Serbian collaborators, regardless of their ethnicity.

When Rogers asked Kabashi, a burly, dark-haired man, whether he was afraid of testifying this week, the latter turned and looked at the prosecutor. “Do I look like one who is afraid?” he said, momentarily breaking from his native Albanian into English.

In 2005, Kabashi testified as a prosecution witness in the trial of KLA commander Fatmir Limaj. At that time, he spoke about seeing people being detained in Jablanica, some of whom he said sustained injuries from beatings.

This week, he said that he “didn’t see” any prisoners there and that the Jablanica location “was not a detention centre.”

He was reluctant to elaborate on this when further questions were put to him. Rogers asked why he could not talk about it, given his previous testimony on the matter.

“If you were in my shoes, you’d know why. Since you are not, you would never be able to understand the reason why,” Kabashi said. “I have suffered a lot and the burden is so heavy that I cannot lift myself up. I don’t want you to urge me more than you have.… I leave it in the hands of God.”

Rogers then asked whether Kabashi “feared for any other person” if he were to continue testifying.

“I said what I wanted to say,” Kabashi answered. “I don’t think I can say something else.”

“Yes or no,” said Rogers.

Kabashi rubbed his head and looked down. “I don’t know,” he said.

“You don’t know whether you fear for someone else?” presiding Judge Bakone Justice Moloto asked.

“I don’t know,” Kabashi said again.

The 2005 testimony the witness gave in the Limaj trial became the next point of contention.

“Did you answer questions in the best way you could, trying to remember as well as you could what happened?” Rogers asked.

“That’s where the problem lies,” Kabashi said. “I can’t tell between that time and the present time. I did my best to tell the truth because I’m not used to lying. I’m not really in the state of mind to clarify things.”

Rogers then moved to have the transcript of Kabashi’s previous testimony admitted as evidence, despite strenuous objections from the defence.

The judges decided to admit it, determining that it was “truthful.” They said that if Kabashi refused to be cross-examined in court, the defence could still bring relevant documents.

A defence lawyer then asked Kabashi whether, as he had previously indicated, he felt unable to testify. The witness responded in the affirmative.

The defence then requested that judges exclude the transcript from evidence, stating that the bulk of the testimony had nothing to do with Jablanica, and that Kabashi was not cross examined about it at the time.

Ben Emmerson, Haradinaj’s lawyer, said that removing an opportunity to cross-examine the witness “strikes at the heart of fair trial rights”.

Judges ultimately rejected the defence’s request to exclude prior testimony.

The trial continues next week.

Rachel Irwin is an IWPR reporter in The Hague.