International Criminal Court (ICC) judges have rejected a request by former Congolese rebel leader Bosco Ntaganda to stay proceedings in his trial. The judges determined that communications recordings just released by the prosecution, which purportedly show Ntaganda’s involvement in witness tampering, were of little relevance to his ongoing trial.
On Monday this week, Ntaganda’s lawyers requested judges to adjourn proceedings so that they could analyze the recordings and make submissions on the impact of the witness bribery investigation on the fairness of the trial.
The defense request followed a prosecution notice stating that Ntaganda was involved in a “broad scheme to pervert the course of justice, including by coaching potential defense witnesses, obstructing prosecution investigations and interfering with prosecution witnesses” in his ongoing trial. These claims were based on a review of 450 recordings of Ntaganda and his former Union of Congolese Patriots (UPC) superior Thomas Lubanga’s non-privileged communications.
In the oral ruling on November 16, judges acknowledged that the disclosed information “may of course impact aspects” of the defense strategy, but an immediate stay of proceedings was not warranted. They suggested that the defense could be given time during the preparation of its case to make submissions on the disclosed material.
Regarding potential prejudice arising from the prosecution’s non-disclosure of the scope of the witness tampering investigations, judges noted that a prosecution filing of November 15 confirmed that there was no surveillance of defense lawyers’ communications. On the defense lawyers’ suggestion that an independent expert reviews Ntaganda’s communications to screen content related to defense strategy, judges noted that the prosecution had also confirmed that no communications with privileged persons were included in the recordings reviewed.
In its submission, the defense argued that the prosecution failed on its disclosure obligations by disclosing the information 13 months after it received it. However, judges Fremr, Kuniko Ozaki and Chang-ho Chung said the defense had “been on notice” with regard to the allegations of witness coaching since before the start of the trial, specifically in the context of ongoing litigation over restrictions on Ntaganda’s communications. “The defense must be assumed to have discussed the issue with Ntaganda and be conscious of it in conducting its investigations and cross-examinations to-date,” stated Judge Fremr.
Nonetheless, judges acknowledged the “voluminous” nature of the information disclosed by the prosecution and the “undisputed” need for the defense to have the opportunity to review the material and thereafter seek remedies for any prejudice that may have occurred. Accordingly, judges instructed the defense to “seek additional assistance” from the court’s Registry to meet the resource demands in reviewing the disclosed materials.
Following the ruling, defense lawyer Stéphane Bourgon requested for suspensive effect on the decision so that his team could apply for leave to appeal the ruling. The prosecution and legal representatives of victims opposed this request, stating that it would delay the trial. Judges declined the request, describing it as “the equivalent of reconsideration” of the decision rejecting the stay of proceedings.
The trial continued with the evidence of Witness P911, the 52nd witness to testify for the prosecution. The defense’s cross-examination of the witness was conducted in closed session.
The trial is scheduled to continue on Monday morning.