International Justice Monitor

A project of the Open Society Justice Initiative

ICC Appeals Chamber Upholds Ngudjolo’s Acquittal

Today, the Appeals Chamber at the International Criminal Court (ICC) delivered its judgment in the appeal lodged by the prosecution against the acquittal of Mathieu Ngudjolo Chui. In December 2012, Trial Chamber II acquitted Ngudjolo of war crimes and crimes against humanity allegedly committed during an attack on the village of Bogoro in eastern Democratic Republic of the Congo (DRC). A majority of the five-judge panel confirmed the acquittal. Two judges dissented.

The prosecutor had put forward three grounds of appeals, namely:

  1. That the trial chamber erred in law in its application of the “guilty beyond reasonable doubt” standard of proof;
  2. That the trial chamber erred in law because it failed to consider all the evidence and facts in making its decision; and
  3. That the trial chamber made procedural errors resulting in non-respect of the prosecution’s rights to a fair trial.

With respect to the first ground, the majority of the Appeals Chamber, consisting of Judge Sanji Mmasenono Monageng (presiding), Judge Sang-Hyun Song, and Judge Erkki Kourula, found that that the trial chamber applied the standard of proof “guilty beyond reasonable doubt” correctly. In coming to this conclusion, the Appeals Chamber evaluated the trial chamber’s analysis and how it weighed the evidence in relation to factual findings, witness credibility assessments, and documentary evidence. It considered, in particular, whether the trial chamber had failed to give adequate consideration and weight to witness statements that referred to Ngudjolo’s confessions that he had taken part in the Bogoro attack. The Appeals Chamber concluded that the trial chamber had applied the “beyond reasonable doubt” standard in a reasonable manner.

Regarding the second ground, the Appeals Chamber found that the trial chamber did not fail to consider the entirety of the evidence presented in its decision-making process. The Appeals Chamber’s finding on this ground was also based on an evaluation of the trial chamber’s consideration and analysis of different evidentiary pieces. The Appeals Chamber found that the prosecution had failed to show that the trial chamber’s interpretation of the evidence was unreasonable.

Finally, in relation to the third ground, the Appeals Chamber stated that the right to a fair trial is a fundamental principle of criminal proceedings, which applies mainly to the accused. It could not make a determination as to whether it applies to the prosecution in the abstract. The Appeals Chamber considered the third ground of appeal from the perspective of the trial chamber’s duty to ensure that the truth can be established.

The prosecution’s arguments in relation to this ground of appeal had been unknown until today because the prosecutor’s application was heavily redacted. The arguments related to the fact that the trial chamber had not made Ngudjolo’s phone records and detention center reports fully available to the prosecution. Those records, the prosecutor argued, were important to determine whether witnesses had been intimidated or whether their testimony could have been induced. The Appeals Chamber ultimately found that the trial chamber had exercised its discretion correctly when it decided to make only redacted versions of those records and reports available to the prosecution. The majority explained that the records contained very sensitive information on the defense strategy, which justified such an approach.

However, the Appeals Chamber found that the trial chamber had acted unreasonably when it refused to  allow the prosecution to use the detention center reports to impeach Ngudjolo and another defense witness during their testimonies. The majority also found that the trial chamber erred by not granting the prosecution the right to ask leading questions to a prosecution witness to allow that witness to explain inconsistencies in his statements. Despite making these determinations, the Appeals Chamber found that it was not appropriate to order a retrial. A retrial is a serious measure, the majority explained, and although the Appeals Chamber found that the trial chamber erred, such error did not materially affect the acquittal decision. In other words, even if the trial chamber had approved these requests from the prosecution, Ngudjolo still would have probably been acquitted. Therefore, according to the majority, it would not be appropriate to have Ngudjolo go through another trial.

Judges Ekaterina Trendafilova and Cuno Tarfusser issued a strong joint dissent in which they disagreed with the majority’s conclusions on the three grounds of appeal and accused them of turning “a blind eye” to the errors alleged by the prosecutor. The dissent stated that the trial chamber judgment had been materially affected by these errors, and, accordingly, a new trial should have been ordered.

With his acquittal confirmed by the Appeals Chamber, Ngudjolo left the ICC courtroom a free man. However, shortly afterwards he was reportedly detained by Dutch authorities seeking to deport him back to the DRC. It has also been reported that Ngudjolo’s lawyers have filed a petition with the European Court of Human Rights seeking to prevent his deportation based on concerns for his security. Ngudjolo previously sought asylum in the Netherlands, arguing that he could face considerable risks (including torture and death penalty) if he returned to DRC because of his statements during the trial implicating DRC President Joseph Kabila in the Bogoro attack.  At present, it is unclear what the outcome will be.

The full judgment by the majority as well as the dissenting opinion of Judges Trendafilova and Tarfusser can be found here.

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