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Prosecutor Denies Withholding Exculpatory Evidence from Lubanga’s Lawyers

The International Criminal Court (ICC) prosecutor has denied withholding exculpatory information from the defense of Thomas Lubanga, who was convicted in 2012 of using child soldiers.

In a January 31, 2014 filing, Fatou Bensouda asked judges to reject a defense petition to add to Mr. Lubanga’s appeal grounds the prosecution’s alleged disclosure failure.

Last December, defense lawyer Catherine Mabille said although prosecutors had since 2004 possessed the two documents containing the names and photographs of members of Mr. Lubanga’s personal security detail, they only disclosed them to the defense in December 2013.

Mr. Lubanga wants the two documents, together with correspondences between the defense and prosecution relating to their disclosure, to be considered as additional evidence and new grounds in support of his appeals against conviction and the 14-year prison sentence handed him in July 2012.

His lawyers say this evidence supports their claims of breaches by the prosecutor of her duty to investigate and to honor her disclosure obligations, and the alleged factual errors over the age of soldiers in the presidential guard of the Lubanga-led Union for Congolese Patriots (UPC).

However, Ms. Bensouda said although the prosecution found the two documents incriminatory, they did not fall under material that ought to have been disclosed because the prosecution did not intend to use them as evidence at trial.

She said the information in the documents was within Mr. Lubanga’s personal knowledge. The prosecution says it does not know the author of the documents or when they were authored.

Prosecutors disclosed the two documents last December in the Bosco Ntaganda case and subsequently in email exchanges between them and the defense for Mr. Lubanga and Mr. Ntaganda.

Mr. Ntaganda is alleged to have been the deputy chief of staff of the UPC’s armed wing. While the two Congolese nationals were charged jointly in 2006, Mr. Ntaganda only surrendered to the court last March. Confirmation of charges hearings in the Ntaganda case will commence next week.

The prosecutor argued that an appeal against a conviction was not intended to authorize a re-opening of the evidentiary phase of the trial or allow for the liberal admission at the appellate level of evidence related to the merits of the case. She said admission of additional evidence is dependent on the unavailability of the evidence at trial and its particular quality.

Ms. Bensouda said the prosecution obtained the two documents in 2004 under conditions of confidentiality and a request to lift these conditions was refused in January 2008. The prosecution could therefore not rely on these documents for trial and did not deem it necessary because it was calling witnesses who could directly speak to the age of children within the presidential guard.

A renewed request for lifting the conditions was made last June in the context of the Ntaganda case and the conditions were lifted in August. Ms. Bensouda said the prosecution disclosed the documents to the Ntaganda defense as they contained information of incriminating value and the prosecution wished to rely on them at confirmation and at trial.

The prosecutor also noted that she did have the obligation to disclose all the materials in her possession. She added that while the Rome Statute obliged the prosecution to investigate exonerating circumstances, this provision should not be understood as requiring the prosecution to assume in full the functions of defense counsel.

Article 67(2) requires the prosecution to disclose “evidence in the prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which affect the credibility of prosecution evidence.”

Meanwhile, noted the prosecutor, Rule 77 required disclosure of information that was “material to the preparation to the defence or are intended for use by the prosecutor as evidence for the purposes of the confirmation hearing or at trial […] or were obtained from or belonged to the person.”

Ms. Bensouda said contrary to defense assertions, the documents did not show that trial judges erred in determining that soldiers in the presidential guard were under the age of 15.

In their January 13 order granting the defense application to add to Mr. Lubanga’s grounds for appeal, judges stated that the non-disclosure of material potentially relevant to the finding of the use of children under the age of 15 years within the UPC presidential guard sought “to call into question the reliability of a considerable part of the findings upon which Mr. Lubanga’s conviction was based.”

It is in this ruling that prosecutors and victims’ lawyers were ordered to file responses to the defense application.