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Appeals Chamber Finds no Rights Violation for Ngudjolo

The Appeals Chamber of the International Criminal Court (ICC) has rejected an application from Mathieu Ngudjolo seeking instructions on how he is to prepare for his appeals trial given his current detention in the Netherlands.

On December 18, 2012, Trial Chamber II of the ICC acquitted Ngudjolo of all charges relating to crimes against humanity and war crimes committed during an attack on Bogoro, a village in the eastern region of the Democratic Republic of the Congo (DRC). The court ordered his immediate release. The prosecution appealed this order, requesting the court to keep Ngudjolo in custody while they appeal the acquittal. The Appeals Chamber rejected this request and Ngudjolo was released from the ICC Detention Center on December 21, 2012.

After his release, he was taken into custody by Dutch officials, allegedly on an immigration infraction. He claimed asylum in the Netherlands and is currently being held in a detention center at Schiphol Airport, near Amsterdam.

In a submission to the Appeals Chamber, Ngudjolo complained that his current detention by Dutch immigration officials make it difficult for him to adequately prepare for his appeals case. Specifically, he argued, the distance, costs, and conditions of his detention prevent his defense team from working with him in a way that would protect his fair trial rights. He argued that his right to adequate time and facilities to prepare his defense, protected by the Rome Statute and the European Convention on Human Rights, is threatened by his detention.

He specifically complained that it was difficult for his defense team to meet with him confidentially and freely. His defense team could not communicate directly with him, Ngudjolo argued. He submitted that he could only telephone his defense team, which he claimed is very expensive. Ngudjolo also argued that in addition to the fact that his counsel does not have easy access to him, he cannot access his entire case file like he could at the ICC detention center. Moreover, Ngudjolo submitted, he has insufficient privacy to read case materials or speak to his counsel from the telephone in his cell because his cellmate is also from the DRC and speaks Lingala and French. Ngudjolo also argued that his health and well-being were at risk because his cellmate keeps him awake during the night.

Ngudjolo asked the Appeals Chamber to provide instructions on how his defense team should proceed with the appeal under these circumstances and to make any orders it should deem necessary to protect his rights.

The Appeals Chamber noted that Ngudjolo is under the jurisdiction of the Dutch authorities because he has been detained in connection with his request for asylum in the Netherlands. Therefore, the Appeals Chamber said, it was not the correct judicial body to review the conditions of his detention. The only thing the Appeals Chamber could rule on, it found, was whether the conditions of detention infringed on Ngudjolo’s fair trial rights before the ICC.

The Appeals Chamber observed that according to Dutch law governing Ngudjolo’s detention, he is allowed visits from his legal assistant on work days between working hours, and, if it is in the interests of justice, outside those hours. These visits can take place confidentially in a minimally supervised visiting room, the Chamber noted. Ngudjolo’s counsel is providing him with hard copies of his case file, the Chamber stated, therefore meeting his need to access his case file to prepare for his defense. Furthermore, Ngudjolo has access to a telephone from his cell and a weekly telephone credit so that he can make calls. It is Ngudjolo’s responsibility to make arrangements with his co-detainee in order to speak confidentially with his lawyers, the Chamber considered. Other complaints about his well-being and health should be directed to the Dutch authorities, the Chamber found.

Based on these observations, the Appeals Chamber found that Ngudjolo’s conditions of detention do not infringe upon his fair trial rights at the ICC. The Appeals Chamber also recalled that it had previously granted an extension to Ngudjolo’s time limits for his appeals submissions so that he could have adequate time to prepare his defense. Therefore, the Appeals Chamber found, is it not necessary to issue any instructions or orders on how Ngudjolo should prepare for his defense in light of his detention.

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