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Judges Decline to Shield Witness From Public View During Testimony

On October 22, International Criminal Court (ICC) judges rejected a request to shield from public view the face of a witness who was testifying in the trial of Bosco Ntaganda. The judges determined that such a measure was unnecessary. Judges also declined to distort the voice of the witness during his testimony, but they granted him the use of a pseudonym: Witness P-886.

The prosecution applied for the protective measures a day before the witness was due to start his testimony. It argued that the in-court protective measures sought would “protect this witness’s security, psychological well-being, dignity and privacy” and “may mitigate the need for subsequent, more intrusive measures post-testimony.” The court’s Victims and Witnesses Unit also recommended the protections.

According to the prosecution, in the course of the witness preparation session, Witness P-886 sought in-court protective measures on the basis of concerns about his security and that of his family should his identity be made public in the Democratic Republic of the Congo.

Defense lawyer William St-Michel did not oppose granting protective measures since the witness had cited security concerns.

In the oral ruling, presiding judge Robert Fremr stated that bearing in mind the court’s obligation to protect witnesses and the guiding principle to have public hearings, the witness would only be given partial protective measures. He would be referred to by a pseudonym and questioning about his identifying information would be conducted in closed session. However, in public transmissions of his testimony, his face and voice would not be distorted.

Trial lawyer Diane Luping noted that the witness had indicated his willingness to testify on the basis of being granted voice and face distortion as well. It was possible the witness would not be willing to proceed if these protections were not granted, she added.

Judge Fremr explained to Witness P-886 that the information judges possessed showed no immediate risk and they believed the use of a pseudonym was sufficient for his protection. Moreover, said the judge, testimony by the witness had no direct linkage to Ntaganda, the former Congolese militia commander on trial for war crimes and crimes against humanity.

Witness P-886 is a crime-based witness who is giving evidence about the entry of fighters from the Union of Congolese Patriots (UPC) into the Congolese town of Sayo and how they ransacked shops and homes and killed civilians. Some of his evidence is being heard in closed session.

While delivering their opening statements last month, defense lawyers criticized the planned use of closed sessions during the testimony of some witnesses, which they argued would deny Ntaganda a right to a public trial and undermine efforts to establish the truthfulness of testimony.

At the end of the week’s hearing, Ntaganda’s lead lawyer Stéphane Bourgon said, based on the testimony by Witness P-886 and the defense’s investigations, “we believe there’s a particular issue of motivation” to explain why the witness is “bringing this particular information.” He added: “Many of the events he’s talking about are simply untrue.” Other defense teams in trials at the ICC have criticized what they deem the excessive use of closed sessions and in-court protections offered to protect witnesses. Of the 40 witnesses who testified for the prosecution in the Jean-Pierre Bemba trial, 30 had pseudonyms and face and voice distortion. Only four of the 35 defense witnesses testified without similar protective measures.

Earlier on October 22, Witness P-768, a former officer of the UPC, completed his testimony. He commenced his testimony on October 19, providing most of it in closed session and under the protective measures of a pseudonym and face and voice distortion.

The examination-in-chief of Witness P-886 continues on Monday, October 26, 2015.