For the second time since International Criminal Court (ICC) judges stopped receiving evidence in Jean-Pierre Bemba’s war crimes trial, his lawyers are fighting to secure a stay of proceedings, this time citing late disclosure of evidence by the prosecution.
This application comes days after trial judges dismissed the first defense motion for a stay of proceedings, which was filed last December and cited abuse of process and breach of privileges and immunities by the prosecution. In a June 17, 2015 ruling, trial judges Sylvia Steiner (presiding), Kuniko Ozaki, and Joyce Aluoch found that the defense failed to substantiate the potential or actual impact of prosecution measures that justified a stay of proceedings.
“Nearly three years after the start of the defense case, the prosecution has finally disclosed information directly relevant to the credibility of defence witnesses, which it gathered at the commencement of the defence case in 2012,” defense lawyer Peter Haynes said in the June 19, 2015 application. The disclosure occurred on June 8, 2015.
The material includes a report by a prosecution investigator detailing his interview with prosecution witness Thierry Lengbe on the background and credibility of defense witnesses D04-11, D04-51, D04-52, and D04-57, and the chamber’s witness CHM-01.
According to Mr. Haynes, other material just disclosed by the Office of the Prosecutor (OTP) shows that a prosecution contact identified as CAR-OTP-P-007, who was ultimately not called to give evidence, provided a prosecution trial attorney information on all four of the above defense witnesses as well as witnesses D04-64, D04-04, D04-23, and D04-26.
Mr. Haynes said the defense made repeated but unsuccessful requests for disclosure of this material throughout the proceedings, both during and after the period of the hearing of evidence.
The defense contends that this “deliberate non-disclosure” is a manifest breach of the prosecution’s statutory obligations. It also argues that it suffered material prejudice by being deprived of the opportunity to consider information about the credibility of its own witnesses, which was in the prosecution’s possession “at the very outset” of the defense case.
Mr. Haynes argued that the timing of this disclosure and the current stage of the proceedings render the majority of remedies for disclosure violations obsolete. “The only sensible and meaningful remedy is a stay of the present proceedings,” he added.
Mr. Bemba has been on trial at the ICC since November 2010 for failing to control his Movement for the Liberation of Congo (MLC) militia, who allegedly committed murder, rape, and pillaging during a conflict in the Central African Republic in 2002 and 2003.
In November 2013, charges under Article 70 of the Rome Statute were laid against Mr. Bemba and his defense lawyers Aimé Kilolo Musamba and Jean-Jacques Mangenda Kabongo. Also accused were Narcisse Arido – who is believed to be witness D04-11 – and Congolese parliamentarian Fidèle Babala Wandu.
In the initial application for stay of proceedings, the defense argued that constituent elements of a fair trial for Mr. Bemba had been “destroyed” by the prosecution’s actions and investigations under Article 70. Specifically, argued the defense, the prosecution had requested states to perform actions that violated the privileges and immunities of the defense, including requests for transmission of financial records and information, content of email accounts, and records of telephone communications, “all concerning the defense team members, protected witnesses or persons related to them.”
In addition, the defense argued that prosecutors received privileged information concerning defense strategy and instructions from Mr. Bemba, internal work product and ex parte information. Furthermore, the defense accused the prosecution of employing “sharp trial tactics” by failing to disclose information concerning the credibility of defense witnesses. Lastly, the defense argued that the confidentiality of its information was compromised and witnesses and sources potentially exposed to risk.
Prosecutors opposed the December 2014 defense application for stay of proceedings. They stated that a permanent stay of proceedings was a “drastic” and “exceptional” measure, “which may potentially frustrate the delivery of justice.”
According to prosecution, the defense complaints were “incorrect and speculative” and neither the immunity of defense team members nor legal privilege were violated. They argued that, the “attempt by the Defence to recast a collection of individual incidents and complaints, each adjudicated or debunked during the course of the trial, as a narrative of misconduct, bias, or impropriety is false and unpersuasive.”
Defense lawyers have applied for leave to appeal the judge’s June 17 decision stating that the trial chamber “made a number of significant errors of fact and law, including its articulation of the legal standard for a stay of proceedings.” The prosecution has responded asking for judges to reject this application.
Trial judges are yet to make a decision on the defense application for appeal and on their latest motion for stay of proceedings.