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Prosecution Investigations Delay Start of Ntaganda Trial

The trial of Bosco Ntaganda for war crimes and crimes against humanity at the International Criminal Court (ICC) is not expected to commence until June 2015 due to ongoing prosecution investigations.

According to submissions made during a status conference on Thursday morning, the investigations are not due to be finalized until the end of January 2015. Full disclosure of evidence to the defense is not expected before March 2015.

Mr. Ntaganda, the alleged former deputy chief of staff of the Patriotic Front for the Liberation of Congo (FPLC), was committed to trial last June. ICC Pre-Trial Chamber II found that there were substantial grounds to believe that during 2002 and 2003, troops belonging to the FPLC committed crimes against the civilian population in Congo’s Ituri province.

In its written submission on the provisional agenda for the status conference, the Office of the Prosecutor (OTP) proposed June 2015 as “a realistic date for the commencement of the trial.” It explained that it was in advanced stages of disclosing evidence, including the identities of witnesses, to the defense and conducting further “focused investigations” to collect additional evidence.

To date, the prosecution has disclosed the identities of 38 witnesses whose evidence it relied upon during the confirmation of charges stage. The identities of nine other witnesses and any additional witnesses upon whose evidence it intends to rely at trial are expected to be disclosed over the coming months.

However, according to prosecution lawyer Nicole Samson, the team was currently seeking to locate and reestablish contact with an undisclosed number of its witnesses and anticipates meeting its full disclosure obligations at least three months before the trial date.

The OTP also stated that it was awaiting responses for requests to lift restrictions on documents and information obtained on the condition of confidentiality.

Mr. Ntaganda’s newly appointed lawyer Stéphane Bourgon submitted that “the paucity of information” on the final list of witnesses the prosecution intended to call was “concerning.” It created a heavy workload and had a potential impact on the defense strategy.

“The information disclosed so far leads to the conclusion that by March 2015, the list is likely to be different to the one we have today,” said Mr. Bourgon.  He added that the statements of the identified witnesses as well as the topics and issues they are going to testify on had also not been disclosed.

The defense also raised concerns about expert witnesses, stating that prosecutors had not provided information on the total number or timelines of when to expect the expert reports. The prosecution intends to call expert witnesses on the historical context of the case, on sexual violence, trauma, satellite imagery, and forensics, among others.

Ms. Samson told the chamber that considerations were being made to use expert reports from the trial of Thomas Lubanga, the former president of the FPLC who was initially indicted with Mr. Ntaganda back in 2006. Mr. Lubanga was found guilty in 2012 of using child soldiers and sentenced to 14 years in jail. He is appealing the conviction and sentence.

In their submissions before the chamber, lawyers representing victims in the trial stated that some victims have been waiting for more than 11 years for the trial, and it was in their interest to commence proceedings as soon as possible. So far, the court’s Registry has received 2,000 applications from victims who want to participate in the trial. An estimated 400 further applications are expected to be filed over the coming months. Currently, 1,120 applicants have been granted participating status.

Other issues addressed during the status conference included the languages to be used in the trial proceedings. The OTP indicated that its witnesses will testify in English, French, Swahili, and the Congolese languages Lingala and Kilendu. However, the accused’s preferred language of communication is Kinyarwanda. He has basic knowledge of French and none of English.

The defense intends to make a full assessment of the prosecution’s documents and a request for the necessary translations by the end of October 2014.

A series of status conferences are scheduled to take place over the coming months for parties to provide updates on progress. The first is tentatively scheduled for October 2014. Thereafter, Judges Robert Fremr (presiding), Kuniko Ozaki, and Geoffrey Henderson shall render a decision on the trial date.

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