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Ntaganda Lawyers Seek Stay of Proceedings as Witness Tampering Case Looms

Less than a month after International Criminal Court (ICC) judges convicted five individuals for witness tampering, former Congolese militia commander Bosco Ntaganda may soon face similar charges at the court based in The Hague. The prosecution last week disclosed to the defense evidence it gathered showing Ntaganda’s alleged involvement in witness tampering. In reaction, the defense has asked judges to stay the proceedings until next year.

In the notice filed last week, the prosecution says Ntaganda is 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 on 18 counts of war crimes and crimes against humanity.

The prosecution’s claims are based on a review of up to 450 telephone conversations by Ntaganda and Thomas Lubanga, dating back to March 2013.  Lubanga, the former commander-in-chief of the Union of Congolese Patriots (UPC) rebel group where Ntaganda was deputy chief of staff, is serving his 14-year jail term in Congo, after being transferred from the ICC detention center last December.

In a request filed this morning, Ntaganda’s lawyers said adjourning proceedings would give them time to analyze the disclosed information to ensure all future cross-examinations are conducted in light of the prosecution’s disclosure, and to make submissions on the impact of the witness bribery investigation on the fairness of the trial.

While disclosing the more than 20,000 recordings of Ntaganda and Lubanga’s non-privileged communications and associated metadata, prosecutors said the information was “material” to the preparation of the defense case that is expected to start in 2017 and to the selection of Ntaganda’s witnesses.

However, defense lawyer Stéphane Bourgon stated that the prosecution’s possession of that evidence for more than 13 months before disclosing it was “excessive.” He added: “The scale and duration of the non-disclosure is unprecedented. The implication is that the prosecution has not been seeking to obtain evidence about suspicions of past Article 70 offences but rather waiting for indications of future Article 70 offences.”

Under Article 70 of the Rome Statute, it is a criminal offense for anyone to attempt to corruptly influence witnesses or tamper with evidence, or present evidence known to be false or forged. Those convicted may face up to five years imprisonment, a fine, or both. Prosecutors are yet to indicate whether they intend to bring witness tampering charges against Ntaganda.

The defense also took issue with the non-disclosure of the scope of the Article 70 investigations, its modalities, and investigative steps, including whether any members of the defense team had been “telephonically surveilled.”

Furthermore, the defense noted that it is unclear whether the review of Ntaganda and Lubanga’s communications was conducted by an independent entity to ensure the screening and filtering of information not relevant to Article 70, including “legitimate discussions on defense or prosecution witnesses, or information concerning defense strategy.”

In justifying the request to adjourn proceedings until January 2017, Bourgon said requiring the defense to proceed without being able to identify the prejudice that it is “very likely suffering,” or to conduct its cross- examinations without having disclosure of potentially vital information, would harm the fairness of the trial.

Last year, judges slapped restrictions on Ntaganda’s contacts and communications after finding reasonable grounds to believe that he personally engaged in witness coaching and also directed his associates to do so.

In the notice, prosecutors stated that they would seek from judges measures to safeguard the integrity of the proceedings. The measures would include a request for “enhanced” disclosure by the defense of information concerning the witnesses it intends to call, such as:

  1. Timely disclosure of witness identities and materials to allow for prosecution investigations;
  2. Disclosure of signed witness statements, with an indication of the interview dates and who was present for the interview, including interpreters;
  3. Disclosure of records of all prior meetings with the witness by the current and former defense team and who was present, including interpreters; and
  4. Disclosure of a list of persons who facilitated the witness’s contact with the defense team.

Charges under the article were first brought before the ICC back in November 2013 with the arrest of lawyers and associates of Jean-Pierre Bemba. Investigations in this case included the interception of communications, including privileged ones between Bemba and his lawyers. In the ensuing months of the case, Bemba’s defense team expressed concerns over continued monitoring in breach of lawyer-client confidentiality privileges.

Judges are yet to pronounce themselves on the Ntaganda defense’s motion. At the start of proceedings this morning, Bourgon requested that hearings should not continue until its motion was adjudicated. However, judges ruled that the trial would continue with the testimony of Witness P911 in the morning and that of Witness P918 in the evening via video link. The evidence of both witnesses, who started testifying today and last Thursday respectively, was mostly heard in closed session.

Hearings are scheduled to continue tomorrow morning.

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