International Criminal Court (ICC) judges have rejected a request by Bosco Ntaganda to stay proceedings in his trial over allegations that he could no longer be assured of a fair trial because prosecutors wrongly accessed critical defense information. In an April 28 ruling, judges considered that it was possible to continue conducting a fair trial for the former Congolese rebel leader.
Last March, Stéphane Bourgon, who heads Ntaganda’s defense team, argued that a stay of proceedings was the only adequate remedy after the Office of the Prosecutor (OTP) acquired thousands of recordings of the accused’s conversations, including those on defense strategy and his personal knowledge of the case. The records were acquired while the OTP investigated Ntaganda for witness tampering under Article 70 of the court’s founding law, the Rome Statute.
However, judges found that the threshold required to justify a stay of proceedings had not been met. According to the judges, a permanent stay of proceedings was an exceptional remedy only to be granted as a last resort, when the essential pre-conditions of a fair trial are missing, and when there is no sufficient indication that the relevant issues will be resolved during the trial process.
Defense lawyers had contended that the 4,684 conversations acquired by the prosecution revealed “detailed and confidential Defense information, which laid bare the identity of potential witnesses, the Accused’s defense strategy, and other critical Defense arguments.”
In her response to Ntaganda’s request, prosecutor Fatou Bensouda argued that the defense had failed to articulate any facts that would amount to an abuse of process or that warranted “the exceptional remedy” of a stay of proceedings. She argued 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.
Bensouda 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 that the ICC was established to investigate and prosecute. Ntaganda is on trial at the ICC for 18 war crimes and crimes against humanity.
In the ruling, the judges directed that the prosecution shall not be allowed to use the material obtained in the context of the Article 70 proceedings during the defense’s presentation of evidence, unless specifically authorized by the Chamber upon receipt of a request. Furthermore, judges advised that any further review of Ntaganda’s conversations should be conducted by members of the OTP who are not part of the trial team of the Ntaganda case.
In addition, judges stated that they may consider taking additional measures “upon receipt of a substantiated application setting out concrete instances of prejudice as a result of the Prosecution having unduly benefitted from its access to the Conversations.” Such measures may include allowing the defense to recall prosecution witnesses and disregarding certain evidence.
In their submission, Ntaganda’s lawyers said the prosecution was trying to introduce evidence derived from the Article 70 conversations into the ongoing trial. However, the prosecution dismissed this claim, stating that the evidence cited by the defense had been in prosecution’s hands long before they reviewed the conversations.