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Judges Reaffirm Decision Not to Adjourn Ntaganda Hearings

Judges have declined a defense request to reconsider their decision not to stay proceedings in Bosco Ntaganda’s trial until January 2017. In an oral ruling today, the judges maintained that earlier grounds for rejecting an application to adjourn proceedings still stood, in spite of the defense’s latest submissions that new facts warranted the stay.

On November 16, International Criminal Court judges rejected the request by defense lawyers to stay proceedings in the trial of the former Congolese rebel leader. They determined that communications recordings that had just been released by the prosecution, which purportedly showed Ntaganda’s involvement in witness tampering, were of little relevance to his ongoing trial.

The initial stay of proceedings request was filed after the prosecution issued a notice in which it claimed 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 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. The Office of the Prosecutor handed to the defense 20,000 recordings, inclusive of the 450 which the prosecution had already reviewed.

On November 28, Ntaganda’s lawyers asked judges to reconsider their decision, pointing to the large volume of disclosed materials that needed weeks to study and respond to, the alleged late disclosure of the material by the prosecution, and related prejudice suffered by the accused.

In today’s ruling, Presiding Judge Robert Fremr stated that a reconsideration of judges’ decisions is made in exceptional circumstances, such as where a prior error is demonstrated or when it is necessary to prevent an injustice. “In the present circumstances, the chamber is of the view that the applicable standard for reconsideration has not been met,” said the judge.

The defense argued that one of the new facts that warranted a stay of proceedings was the recent statement by the prosecution that it would seek to rely on some of the disclosed material against Ntaganda in the ongoing trial. Rejecting this argument, judges determined that, at the time the prosecution made this disclosure, the defense had been “on notice” that the prosecution may seek to use some of the disclosed material in the present case.

According to judges, the fact that such items have been added as incriminatory does not mean that they necessarily relate to the current charges against Ntaganda. However, the judges added that in the context of witness interference and witness coaching allegations against Ntaganda, the defense had known since before commencement of the trial that such information might surface. The prosecution has not stated whether it will bring witness interference charges against Ntaganda.

The Ntaganda trial has so far heard from 57 prosecution witnesses, the majority of whom have testified anonymously and with their faces hidden from the public and their voices distorted during broadcasts of their testimony. A few of the witnesses have given all their testimony in closed session, a practice criticized by the defense, which claims this denies Ntaganda a public trial and can encourage witnesses to tell lies since they know that members of the public can not know their identities or hear their testimonies.

Over the last two days, prosecution Witness 883 has been giving testimony – none of which has been heard in public. She is scheduled to complete her testimony tomorrow morning.