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Lawyer Asks Judges to End Monitoring of Bemba’s Communications

The defense for Jean-Pierre Bemba has asked judges at the International Criminal Court (ICC) to order a stop to the monitoring and recording of privileged communications between Mr. Bemba and his lawyers.

“It is impossible for members of the current team to continue to represent Mr. Bemba without the ability to take instructions and provide advice in a confidential setting,” submitted Peter Haynes in a February 6, 2014 filing.

He asked judges to order a stop to monitoring of all communications, including phone conversations, meetings at the detention center where Mr. Bemba is being held, and the holding cell at the ICC premises. Furthermore, he asked judges to order the court’s registry, the prosecution, and national authorities not to monitor the communications devices of any member of the defense team.

Last July, pre-trial judge Cuno Tarfusser authorized the interception of communications between Mr. Bemba and his then lead defense counsel Aimé Kilolo-Musamba and case manager Jean-Jacques Mangenda Kabongo. Prosecutors applied for permission to conduct the interception as part of investigations into defense witness tampering allegations.

Four months later, prosecutors applied for arrest warrants against Mr. Bemba, his two lawyers, Narcisse Arido, a defense witness, and Fidèle Babala Wandu, a member of the Congolese parliament. The prosecution submitted evidence of money transfers through international services, telephone call records, transcripts, translations and summaries of recorded communications, text messages, witness statements, and e-mails.

On November 20, Judge Tarfusser issued an arrest warrant against all five suspects, stating that there were reasonable grounds to believe that since early 2012, a criminal scheme had been “affording benefits and advantages to certain defense witnesses in exchange for false testimony and the presentation of false or forged evidence.”

The arrest warrant authorized the search and seizure of relevant items from Mr. Bemba’s cell and the homes and workplaces of the other suspects. At their initial appearance before the court, it emerged that Mr. Kilolo’s iPad and Blackberry, which he said contained “the entire defense strategy” in the ongoing trial, were seized during his arrest.

Mr. Haynes, who now leads Mr. Bemba’s defense team, on January 16 wrote to the prosecutor asking whether there was still monitoring of privileged defense communications with Mr. Bemba or of the communications of current defense team members.

Mr. Haynes says the prosecution’s response to his letter did not directly answer his questions. Citing international tribunals, Mr. Haynes stated that confidential and privileged communications between lawyers and their clients were a recognized right and that this right was “an indispensable component” of a fair trial.

Furthermore, he said Articles 67 and 69 of the Rome Statute upon which the ICC was founded provided for an accused to communicate freely with his counsel in confidence and required the court to respect confidentiality privileges.

The accused’s lawyer wants judges to order the prosecution to respond to the questions raised in his January letter regarding the extent of communications monitoring and whether intercepted information was given to any third parties.

Mr. Bemba stands accused of failing to rein in his Movement for the Liberation of Congo troops, who prosecutors allege carried out massive rapes, killings, and looting in the Central African Republic during 2002-2003. Although he was not in the conflict country at the time his troops allegedly brutalized civilians, prosecutors claim that as their commander-in-chief, he was aware of their misconduct but did not stop or to punish them. The Congolese opposition leader denies all five charges against him.

Judges are yet to pronounce themselves on the defense application.

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