Bosco Ntaganda, the former Congolese rebel commander on trial at the International Criminal Court (ICC), has asked judges to halt his trial, claiming the prosecution abused the court’s processes when it inappropriately accessed critical defense information.
Defense lawyer Stéphane Bourgon says that while the Office of the Prosecutor (OTP) was investigating Ntaganda for alleged witness tampering, it acquired thousands of recordings of his conversations, including those on defense strategy and his personal knowledge of the case. This, he argues, amounted to an abuse of the court’s process and as a result Ntaganda can longer receive a fair trial. He suggests that a stay proceedings is the only adequate remedy.
In a March 20, 2017 filing, Bourgon states that Ntaganda’s 4,684 conversations that the prosecution acquired, revealed detailed and confidential defense information, “which laid bare the identity of potential witnesses, the Accused’s defence strategy, and other critical Defense arguments.”
He further argues that the OTP should not have allowed prosecutors in the ongoing trial to access the conversations obtained during witness tampering investigations. Instead, he claims, the responsibility for the Article 70 investigation remained with the prosecution senior trial attorney in the main case. Bourgon suggests that the prosecutor could have requested the appointment of an independent counsel to conduct the investigation or ensured that different staff from her office handled the two procedures.
However, in an April 6 response, Prosecutor Fatou Bensouda counters that the defense failed to articulate any facts that would amount to an abuse of process or that warranted “the exceptional remedy” of a stay of proceedings.
According to her, Ntaganda suffered no prejudice from the prosecution “uncovering a scheme of witness interference and coaching that he directed.” She also dismisses the argument that the prosecution’s investigation into such serious misconduct had made the trial proceedings unfair or somehow biased the trial chamber.
Bensouda argues that while the defense claimed that the main prosecution team should not have accessed Ntaganda’s conversations, it failed to cite any jurisprudence prohibiting a prosecuting team from investigating an accused’s alleged misconduct during trial. She cited a determination by the Appeals Chamber that the same prosecutor may deal with charges under Article 70 and charges under Articles 6 to 8 without giving rise to a conflict of interest. Article 70 deals with offenses against the administration of justice, while Articles 6 to 8 deal with genocide, crimes against humanity, and war crimes, which are considered the core crimes for which the ICC was established to investigate and prosecute.
Last September, judges issued a decision maintaining restrictions that were imposed on Ntaganda’s communications back in September 2015, after finding reasonable grounds to believe that he personally engaged in witness coaching and also directed his associates to do so. These restrictions were further maintained last month in a ruling on a defense petition.
In 2015, judges granted the prosecution access to Ntaganda and Thomas Lubanga’s non-privileged conversations dating from March 2013 to aid the Article 70 investigations. Last November, the prosecution disclosed to the defense 20,968 records, which it said indicated “serious and concerning attempts” by Ntaganda and Lubanga to interfere with prosecution investigations and witnesses and to coach potential defense witnesses. The records include 4,684 audio files of telephone conversations and 4,684 metadata files with information on the date, start time, end time and duration of the telephone conversation and the telephone number called by the Ntaganda and Lubanga.
Ntaganda’s trial for 13 counts of war crimes and five of crimes against humanity has been ongoing since September 2015. All prosecution witnesses have completed testifying. Three victims participating in the trial testified last week, while five others had earlier presented their views and concerns to judges. The defense is expected to start presenting its case at the end of next month.
Ntaganda’s lawyers say the prosecution is trying to introduce evidence derived from the conversations into the ongoing trial. However, the prosecution dismisses this claim, stating that the evidence cited by the defense had been in prosecution’s hands long before they reviewed the conversations. Bourgon also claims that the prosecution is attempting to meet with potential defense witnesses mentioned in Ntaganda’s conversations.
Judges are yet to make a ruling on the defense’s request for a stay of proceedings.