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Recorded Testimony of Witness Who Declined to Testify at Ntaganda Trial Admitted Into Evidence

The recorded testimony of a witness who declined to testify at Bosco Ntaganda’s trial at the International Criminal Court (ICC) has been provisionally admitted into evidence. The witness, who was called by prosecutors in October 2015, declined to testify after he was informed that judges had granted him the use of a pseudonym but not distortion of his voice and image during public broadcasts of his testimony.

Judges Robert Fremr (presiding), Kuniko Ozaki, and Chang-ho Chung ruled that Witness P039’s prior recorded testimony was relevant to allegations against Ntaganda related to attacks by the Union of Congolese Patriots (UPC) troops on Mongbwalu town in 2002 and an undisclosed locality in February 2003, as well as the capture and imprisonment of civilians of Lendu ethnicity in Kobu and their alleged subsequent murder. Judges also determined that the statements were “reliable” and “appropriate,” and their admission was in the interest of justice.

Provisionally admitted into evidence are the witness’s statements from 2005 and 2013, a sketch, and a victim’s application form. Although details about the sketch were not disclosed, judges said the drawing was “adequately used and explained” in the witness’s recorded testimony. The witness preparation note was also admitted for “the purposes of assessing credibility.”

Judges found that while Witness P039’s victim application was not mentioned in the recorded testimony, it was relevant in assessing any discrepancies between the form and the content of the witness’s statements.

In 2015, when judges declined to offer full protective measures to Witness P039, prosecutors sought a reconsideration of the judges’ decision, an order to compel the witness to testify, or additional protective measures for the witness. Judges rejected these requests.

Full admission of Witness P039’s testimony awaits submission by the prosecution of a declaration by the witness affirming its accuracy and truthfulness. Rule 68(2)(b) of the ICC Rules of Procedure and Evidence provides that prior recorded testimony of a witness not present before the court may be introduced as evidence.

In a January 12, 2017 ruling, judges found that the declaration annexed to the prosecution’s application for admission of Witness P039’s testimony did not meet requirements under Rule 68 (2)(b). Specifically, the declaration contained no confirmation by the witness that the contents of the recorded testimony were true and accurate. “The declaration merely states that the prior recorded testimony was read to the witness in its entirety and then identifies two clarifications the witness would like to make,” noted the judges.

Defense lawyers opposed to the submission of Witness P039’s prior recorded testimony, arguing that it related to matters in dispute and was thus prejudicial to Ntaganda’s rights. According to the defense, Witness P039 had contact with a prosecution intermediary going by the pseudonym P154 and other unnamed prosecution witnesses, the circumstances and details of which the defense needed to question the witness about.

However, in their decision, the judges noted that the alleged contact happened in 2007, after the date of Witness P039’s first statement. The judges also considered that the defense would have “ample opportunity” to investigate and challenge the circumstances of the alleged meetings and contacts by means other than cross-examining Witness P039. Judges also noted that the defense had already cross-examined some prosecution witnesses alleged to have attended the meetings about their knowledge of Witness P039.

Today, hearings continued with the testimony of Witness P773 who appeared via video link and all her evidence was heard in closed session. Yesterday, Witness P863 who took the witness stand on Monday morning concluded testifying, with the entire cross-examination conducted in closed session.

Hearings continue tomorrow morning with a new prosecution witness.

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