The defense for Germain Katanga has requested Trial Chamber II at the International Criminal Court (ICC) to issue a permanent stay of proceedings, just two months before Katanga is due to hear the trial chamber’s judgment in his case.
The prosecutor originally charged Katanga and his then co-accused Mathieu Ngudjolo Chui with crimes against humanity and war crimes allegedly committed during an attack on Bogoro, a village in eastern Democratic Republic of the Congo (DRC). They were accused under Article 25(3)(a) of having committed the crimes through “indirect co-perpetration,” where Katanga and Ngudjolo allegedly used hierarchical organizations (the Ituri Patriotic Resistance Force (FRPI) and the Nationalist and Integrationist Front (FNI), respectively) to carry out the crimes according to Katanga and Ngudjolo’s purported common plan to wipe out Bogoro.
After the parties had made their closing arguments, the trial chamber majority, Judge Christine Van den Wyngaert dissenting, notified the parties that it would likely change Katanga’s mode of liability to “common purpose” liability under Article 25(3)(d)(ii). The judges have the power to make this change under Regulation 55 of the Regulations of the Court. Due to this development in the case against Katanga, the judges severed the two cases and later acquitted Ngudjolo. The prosecution has appealed his acquittal.
Katanga appealed the possible change in charges. A majority of the Appeals Chamber, Judge Cuno Tarfusser dissenting, upheld the trial chamber decision. According to the majority, the decision itself did not violate Katanga’s fair trial rights. However, it acknowledged that there was a risk that the trial chamber could violate Katanga’s fair trial rights depending on how it conducted additional proceedings. In particular, the Appeals Chamber majority was concerned about violating Katanga’s rights to a trial without undue delay, given the late timing of the trial chamber decision.
The majority of Trial Chamber II later provided additional information about the potential change. Nevertheless, the defense argued that it lacked sufficient information regarding the potential new mode of liability. Although the defense was granted time to conduct new investigations, it was purportedly unable to do so. The defense said it faced significant difficulties attempting the investigation, owing in part to the deteriorating security situation in eastern DRC
Defense: Judgment Could Violate Fair Trial Rights
The Trial Chamber recently scheduled a hearing for the final trial judgment for February 2014, without giving the defense another opportunity to make investigations related to the potential change. Moving to the final trial judgment in these circumstances would be a “manifest unfairness” to Katanga, his defense argued. Therefore, unless he is acquitted or unless the final trial judgment is rendered on the basis of the original charges, the defense argued, a permanent stay of proceedings is the only way to protect Katanga’s rights.
The defense based its argument on ICC Appeals Chamber decisions that indicate proceedings can be stopped when a fair trial becomes impossible. For example, in the Thomas Lubanga case, the Appeals Chamber held that:
Where a fair trial becomes impossible because of breaches of the fundamental rights of the […] accused […], it would be a contradiction in terms to put the person on trial. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and must be stopped. (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute of 3 October 2006, 14 December 2006, para 37.)
A stay in proceedings can be permanent or conditional. If the accused’s fair trial rights are being violated by a condition that can be remedied, a court can order a conditional stay of proceedings. The trial could later be resumed once the violation of rights has ended—as long as restarting the trial would not violate the right to be tried without undue delay.
The Katanga defense argued that the trial chamber should permanently stay the proceedings because it would be impossible for the accused to effectively investigate facts related to the potential change in charges raised after the conclusion of the trial. The defense has argued repeatedly that such investigations are necessary to protect his fair trial rights if the trial chamber decides to change the charges against him.
The stay of proceedings is also necessary in order to preserve the overall fairness of the trial, the defense argued. The defense contended that any stay of proceedings should be permanent because of how long the trial has already gone on and the need for a trial without undue delay.
The defense argued that the risk of violating Katanga’s fair trial rights is particularly high in this case because of the “nature and extent” of the proposed change and the “extremely late notice” of the possible change—over a year after the parties concluded giving evidence and six months after the trial chamber retired to consider its judgment. Another year has passed since the trial chamber gave notice about the potential change, and, at the hearing scheduled for the final trial judgment, it will have been over six years since Katanga was turned over to the ICC and nearly nine years since he was arrested in the DRC.