This week, judges at the International Criminal Court (ICC) will receive oral submissions on whether the prosecution has presented sufficient evidence to compel Deputy President William Samoei Ruto and former journalist Joshua arap Sang to present their defense.
Trial Chamber V(a) will be seeking clarifications or elaboration of issues that defense lawyers and the prosecution have raised in their written submissions on whether Ruto and Sang have a case to answer. The chamber received applications from the defense to dismiss the case against their clients in October and November last year. It also received the prosecution’s response in November.
What is now commonly referred to as the “no case to answer” motion is not a routine procedure at the ICC as it is in criminal trials in Kenya. The practice at the ICC has been that once prosecution witnesses finish testifying, then a select number of victims testify followed by defense witnesses.
The idea of a “no case to answer” motion in this trial is the initiative of Trial Chamber V(a).
The chamber raised the issue in mid-2013, ahead of the trial, which began on September 10 that year. The chamber asked the parties and participants to the then upcoming trial for submissions on the issue of whether it should consider a “no case to answer” motion and at what point in the trial. In its June 19, 2013 order the chamber asked for submissions on how the trial proceedings should be conducted.
All parties and participants supported the idea of a “no case to answer” motion in responses they filed on July 3, 2013. They also observed that there was no specific provision in the ICC governing statute or its Rules of Procedure and Evidence. In its submission, Ruto’s defense said a similar motion is provided for in the procedures at the International Criminal Tribunal for the former Yugoslavia. Sang’s defense observed in its filing that the Special Court for Sierra Leone had a provision for such a motion in its rules of procedure. The prosecution said in its submission that the provisions in Article 64 giving a chamber powers to manage proceedings before it allowed Trial Chamber V(a) to consider and decide a “no case to answer” motion. The lawyer for victims observed that such a motion would help keep the victims in the case up to date about how the case is progressing as well as help manage their expectations. He also pointed out in his submission that since “no case to answer” motions are routine in Kenyan criminal trials, victims were likely to be aware of such motions.
In its August 9, 2013 decision, Trial Chamber V(a) said it would allow a “no case to answer” motion to be filed. As that particular decision contained the chamber’s rulings on a number of issues concerning the conduct of the trial proceedings, the chamber deferred giving its reasoning and other guidance on a “no case to answer” motion to a later date.
On June 3, 2014, Trial Chamber V(a) issued its detailed unanimous decision on the issue of a “no case to answer” motion. Presiding Judge Chile Eboe-Osuji issued a separate opinion on the matter. In its main decision, the chamber said it was allowing such a motion because it would help ensure that the accused did not have to defend themselves against charges for which there was insufficient evidence. The chamber reasoned this would help keep the trial focused and be fair to both the accused and the victims.
The chamber noted that since there is no specific provision in the Rome Statute for a “no case to answer” motion, it would have to determine what legal standard would apply when it considers such a motion. The chamber said there is a distinction between the determination to be made at the halfway point of a trial, such as a “no case to answer” motion, and a decision on the guilt or innocence of the accused that is made at the end of the case.
“Whereas the latter test is whether there is evidence which satisfies the Chamber beyond a reasonable doubt of the guilt of the accused, the Chamber recalls that the objective of the ‘no case to answer’ assessment is to ascertain whether the prosecution has lead sufficient evidence to necessitate a defense case, failing which the accused is to be acquitted on one or more of the counts before commencing that stage of the trial,” the chamber said.
“It therefore considers that the test to be applied for a ‘no case to answer’ determination is whether or not, on the basis of a prima facie assessment of the evidence, there is a case, in the sense of whether there is sufficient evidence introduced on which, if accepted, a reasonable Trial Chamber could convict the accused,” continued the chamber.
The judges said that in assessing whether the prosecution has presented sufficient evidence, they would consider each count separately. They said they would assess whether evidence had been presented to support any of the incidents alleged in each count. They said they would consider this in addition to whether there is evidence to support the alleged participation of the accused in the crimes.
“In light of each of the matters considered above, the Chamber finds that the test to be applied in determining a ‘no case to answer’ motion, if any, in this case is whether there is evidence which a reasonable Trial Chamber could convict,” said the chamber.
“In conducting this analysis, each count in the Document Containing the Charges will be considered separately and, for each count, it is only necessary to satisfy the test in respect of one mode of liability, as pleaded or for which a Regulation 55 of the Regulations notice has been issued by the Chamber,” the chamber continued.
“The Chamber will not consider questions of reliability or credibility relating to the evidence, save where the evidence in question is incapable of belief by any reasonable Trial Chamber,” concluded the chamber.
It directed that the defense should file a “no case to answer” motion within 14 days of the prosecution closing its case or within 14 days of the lawyer for victims completing the presentation of any evidence or as the chamber may request.
The prosecution issued a notice it had closed its case on September 10 last year.
The following day, the defense teams of Ruto and Sang filed requests for an extension of the deadline by which they should submit their “no case to answer” motions. Later they also applied to have the page limit for such a motion be increased to 100, from the 40 the chamber had set in its June 2014 decision.
Trial Chamber V(a) granted an extension of time and increased the page limit for the motion to 100. The chamber, however, did not grant the defense’s request to defer the filing of a “no case to answer” motion until after the Appeals Chamber had issued its decision on their applications on the issue of whether statements of witnesses who had recanted them can be used as evidence against their clients.
Once the different parties filed their submissions, the chamber scheduled a status conference to review those submissions and issues that may arise from them. It is not expected that Trial Chamber V(a) will issue its decision on the “no case to answer” motions at this week’s status conference. The chamber is more likely to do so in the weeks to come.