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Judges Reject Defense Bid to Postpone Opening of Ntaganda Trial

International Criminal Court (ICC) judges have rejected an application by Bosco Ntaganda’s defense team to appeal the decision setting the opening date for his trial in The Hague next month. Defense counsel for the former Congolese military commander had sought to appeal the September 2 commencement date, arguing that trial judges erred by delaying the trial opening rather than adjourning it until conditions for a fair trial were in place.

Mr. Ntaganda’s trial had earlier been scheduled to commence in June 2015. It was postponed to July in light of logistical difficulties being experienced by the court’s Registry and the defense. On July 3, the trial opening date was postponed from July 7 to September 2, after the defense petitioned judges. Mr. Ntaganda, the former deputy chief of staff of the Patriotic Forces for the Liberation of Congo (FPLC), has been in court custody since March of 2013. He faces 18 counts of war crimes and crimes against humanity, allegedly committed in Congo’s Ituri district during 2002 and 2003.

In an August 4 ruling, judges rejected defense claims that they “arbitrarily” set the trial commencement date. Rather, judges noted, they set the date after careful consideration of oral and written submissions and the relief sought by the defense. Judges also said their decision was informed by obligations placed on them by Article 64(2) of the Rome Statute, in particular to ensure a fair trial and respect of the rights of the accused.

The judges ruled that the defense’s disagreeing with the chamber about whether the length of the adjournment granted ensures the fairness of trial, or whether all the alleged conditions have to be fulfilled for the trial to be fair, did not constitute an appealable ground. Even if it were to constitute an appealable issue, the judges considered that it would not significantly affect the fair and expeditious conduct of the proceedings, or the outcome of the trial.

In the application to appeal, defense lawyer Stéphane Bourgon argued that the judges failed to pronounce themselves on the “serious prejudice” resulting from information having allegedly been withheld from the defense. He said this non-disclosure made it impossible for the defense to articulate the defense case and deliver an opening statement, or to prepare for cross-examination. In last week’s ruling, judges noted that the defense had since received all the material in question and was therefore in a position to assess the integrity and reliability of its investigations.

Furthermore, the judges stated that the decision setting the trial commencement date left open the possibility for future modifications in the hearing schedule if a legitimate need arose. In this respect, judges recalled their trial management powers and the range of measures available to assist the defense in the event of any difficulties.

According to the prosecution, the defense argument was “speculative and incorrect.” The prosecution also stated that the intervention of the appeals chamber could delay the proceedings.

Legal representatives of victims also opposed the defense request, noting that a further lengthy postponement of the trial would prejudice the victims’ right to have the truth established and justice rendered without delay.

After the opening statements close on September 4, the first witness will take the stand on September 15.