A Judge’s Decision Challenged by Both Defense and Prosecution

While today’s hearing was to be devoted to the continuation of the questioning of the first witness, a decision by the judge on how the questioning should be conducted upset the agenda. That decision was challenged by all parties with the exception of the representative of the victims.

One week after the trial began, there were not many people in the public gallery. A few relatives of the defendants, some diplomats, International Criminal Court (ICC) employees and some journalists formed a sparse but studious audience.

The hearing starts at 9:40 (The Hague time), ten minutes late. Laurent Gbagbo and Charles Blé Goudé are present, as always, in suit and tie. Only Gbagbo shows a noticeable but understandable difference in the Netherlands: he wears a scarf.

Initiated yesterday by the prosecution and the legal representative of the victims, the questioning of the first witness was to continue this morning with the defense teams.

But early in the hearing, Judge Cuno Tarfusser delivered an oral decision on a question raised yesterday by the defense who wished to know what ways the parties could challenge the credibility of a witness and use “leading questions.”

An unexpected decision

The decision was as follows: “leading questions,” which can “pre-determine” the witnesses’ answers, are prohibited.

Such questions are generally used in cross-examination (questioning by the party that did not call the witness to testify) to challenge the credibility of a witness, but they are often considered inappropriate when asked by the party calling the witness.

Referring to the ICC Statute, Judge Tarfusser added that there was no “cross-examination” per se, but only general questioning involving all participants. Accordingly, he held that “leading questions”, which do not exist in the ICC Statute, could not be authorized.

However, the chamber concedes that it does not consider as ‘leading’ “the fact that one confronts a witness with facts or circumstances that contradict or appear to contradict the witnesses’ [statement]” and that therefore, such questions are allowed.

A flawed procedure and its consequences for the ICC

The decision, pronounced at the opening of the hearing, is immediately challenged by Gbagbo’s defense team then Charles Blé Goudé’s, who both choose to directly appeal the decision.

The counsel for Laurent Gbagbo, Emmanuel Altit, believes that with this decision, there is a risk that “the whole procedure is irreversibly vitiated, first for the defense and then for the prosecution.” He adds that the implementation of the decision would result in “the rights of the defense being violated and the trial being unfair from the beginning” [because the defense is the party that starts the cross-examination]. “The non-appellant party is placed at a disadvantage,” he reminds the judge.

According to the former president’s defense, this decision would also be a waste of time for the court because one would have to ask even more questions to be able challenge the credibility of the witnesses.

Geert-Jan Knoops, counsel for Blé Goudé, expressed his doubts based on the jurisprudence of international criminal law where leading questions have never been excluded or prohibited. “This decision will influence this court and history,” he warns, explaining that creating such a precedent could vitiate future procedures.

Prosecution lawyer Eric MacDonald also sees this decision as “a key issue for the institution” and therefore decides to also appeal the decision, but in writing.

Paolina Massidda, the representative of the victims, thinks that neither the fairness nor the duration of the trial would be called into question by the judge’s decision. Consequently she does not contest it.

Judge Tarfusser is due to render his findings tomorrow [Friday, February 5]. He adjourns the hearing but points out in a rather irritated tone of voice: “I find it intolerable to argue that my intention is to harm the rights of the defense.”

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Laurent Gbagbo and Charles Blé Goudé are charged with four counts of crimes against humanity, including murder, rape, and other inhumane acts, or – in the alternative – attempted murder and persecution. The accused allegedly committed these crimes during post-electoral violence in Côte d’Ivoire between December 16, 2010 and April 12, 2011.

This summary comes from Ivoire Justice , a project of Radio Netherlands Worldwide(RNW), which offers monitoring and commentary on the ICC’s proceedings arising from the post-election violence that occurred in Cote d’Ivoire in 2010-2011. It has been translated into English for use on International Justice Monitor.

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