International Justice Monitor

A project of the Open Society Justice Initiative

Prosecutor Asks For More Time to Prepare New Case Against Bemba

International Criminal Court (ICC) prosecutor Fatou Bensouda has requested an extension of deadlines for confirmation of charges proceedings against Jean-Pierre Bemba and his four aides, who are acused of forging evidence and bribing witnesses in the ongoing trial of Mr. Bemba.

With less than two weeks to the deadline for her to submit the Document Containing Charges (DCC) and the list of evidence, Ms. Bensouda said she needed four more months to assemble evidence that could enable her to enter the confirmation process in a ‘trial ready’ posture.

In a March 5, 2014 filing, the prosecutor said she had not yet accessed most of the items seized from the accused upon their arrest last November. This evidence, she said, most of it in the hands of Dutch and Belgian authorities, was likely to be of high probative value to the case.

Last November, Mr. Bemba’s lawyers Aimé Kilolo-Musamba and Jean-Jacques Mangenda Kabongo were arrested in Belgium and the Netherlands respectively. A Congolese legislator, Fidèle Babala Wandu, was arrested in the Democratic Republic of Congo, and defense witness Narcisse Arido in France. Mr. Arido, the only one of the suspects not yet transferred to the ICC detention center, has had his final appeal against extradition to The Hague refused by a French court.

The five individuals are accused of forging evidence and bribing witness in the ongoing trial of Mr. Bemba over alleged failure to control his troops ,who allegedly brutalized civilians in the Central African Republic. This trial opened in late 2010 and presentation of oral evidence ended last November.

Among items seized from the suspects were their mobile phones, iPads and laptops. As part of the prosecution’s investigations, phone conversations and email exchanges between Mr. Bemba and his lawyers, and communications with other individuals were also intercepted.

In January, the prosecution received information and data concerning Mr. Arido, and unnamed material seized from him and from Mr. Babala. However, the prosecutor said copies of seized electronic items would require time to analyze and further extractions from additional devices were yet to be completed by the court’s registry.

Ms. Bensouda said following the current schedule for confirmation would require the prosecution to perform a substantial portion of the investigative and analytical work post-confirmation. That would considerably delay the commencement of trial and adversely affect the parties’ efficient preparation, she said.

She also said it was impossible to tell when Dutch and Belgian authorities would transfer the pending material to the court.

During the initial appearance hearings, pre-trial chamber judge Cuno Tarfusser set March 18 as the deadline for submitting the DCC and April 18 for the prosecution’s confirmation submissions. The judge would issue the decision on confirmation of charges at the start of May.

Nicholas Kaufman, who is representing Mr. Bemba, asked judges to reject the prosecution’s application. In a March 11 filing, he said that without a certain indication of when the seized materials would be transferred to the court, the period of extension requested by the prosecutor was merely an estimate.

He added that it was hard to understand how the prosecutor could argue that the materials sought could be relevant if she had never seen them. The defense lawyer said a USB stick and iPad belonging to Mr. Wandu, plus Mr. Arido’s laptop and access to his Yahoo mail account, were provided to the prosecutor during January and early February.

“Although having had more than a month to review the majority of these materials, the prosecutor does not explain why she failed to complete her analysis in the allotted time,” said Mr. Kaufman. “As for the other materials seized from Narcisse Arido, no indication is even given as to when the prosecutor expects to obtain access to them.”

According to Mr. Kaufman, the prosecutor was requesting an extension of deadlines because she did not believe that she had sufficient evidence to make a “substantial” case against Mr. Bemba. As a result, “she will attempt to exploit any extension granted in a vain attempt to ‘fish’ for evidence to bolster what the defense alleges to be her mistaken suspicions.”

In her application, the prosecutor said two reports received from the independent counsel who reviewed privileged intercepted conversations “yielded evidence critical to the case.” She expected that another report expected from the counsel would produce similarly strong evidence.

“The final report, like the two preceding it, will have to be reviewed and the underlying intercepts obtained, analyzed, disclosed and transcribed, as necessary,” noted the prosecutor.

Meanwhile, she added, a review of Mr. Arido’s emails confirmed the presence of evidence material to the charges, but the prosecution needed to compare it with other material which the registry had just released.

Ms. Bensouda stated that forensic extraction involved several technical steps as well as detailed analysis to insure its integrity and accuracy. She added, however, that technical problems were preventing the verification of mobile phone data.

Mr. Kaufman said the prosecutor had sufficient resources to enable her complete the necessary tasks and comply with the set deadlines.

Judge Tarfusser is yet to issue a decision on the prosecution’s application.

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  1. PROSECUTOR YOUR IMBECILE

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