Trial judges have rejected prosecution requests to slap a range of restrictions on Bosco Ntaganda during his upcoming testimony at the International Criminal Court (ICC). They determined that the measures suggested by the prosecution were unnecessary or not enforceable.
Among others, judges declined to bar Ntaganda from meeting his lawyers during his testimony that is expected to last for up to six weeks. The judges also declined to order Ntaganda’s lawyers to tell defense witnesses not to watch the accused’s testimony in any manner.
Ntaganda, a former rebel commander in the Democratic Republic of Congo, will take the witness stand in his own defense on Wednesday, June 14. Only one witness has so far testified for the defense, which says it has lined up more than 100 witnesses. Defense lawyers argue that the accused giving evidence at this stage may result in the presentation of a shorter defense case.
According to a June 8 ruling, judges did not consider that the court’s Witness Preparation Protocol, which allows the calling party to assess and clarify the witness’s evidence, applies to the testimony of an accused person, compared to a witness who may have had limited contact with the calling party. Further, they determined that since Ntaganda’s consultations with his lawyers were subject to counsel-client privilege, it would not be appropriate to apply the protocol to these meetings in the lead-up to his testimony.
In an application last month, ICC Prosecutor Fatou Bensouda requested judges to direct that Ntaganda’s witness preparation sessions be recorded and a witness preparation log and note disclosed to the prosecution. The defense countered that consultations between Ntaganda and his lawyers were protected by counsel-client privilege, and it would be inappropriate to require the recording or disclosure of the content of such discussions.
Judges also rejected a prosecution proposal for the chamber to order the defense to instruct its witnesses who will appear after Ntaganda not to listen to, watch, attend, or in any other manner follow any of Ntaganda’s testimony until they have completed their own testimony.
“The Chamber finds that, in light of the enforcement issues associated with this limb of the Prosecution Request, it does not consider it appropriate or feasible to make such an order,” ruled the judges. They considered it sufficient that the prosecution would have the opportunity to cross-examine defense witnesses about the extent of their awareness of the accused’s testimony.
Judges also found that communication between Ntaganda and his defense may be maintained during the entirety of his testimony. They added, however, that any such communication should always be appropriate, in the sense that lawyers are not permitted to advise Ntaganda as to how he ought to respond to a question or line of questioning. They added that denying Ntaganda contact with his lawyers throughout his testimony would encroach upon his fundamental rights, and they did not consider this to be a proportionate measure to avoid his testimony getting unduly influenced.
Judges also rejected a prosecution suggestion for portions of Ntaganda’s testimony to be heard in private session in order to not influence upcoming witnesses. The defense opposed this, arguing that Ntaganda wished to testify publicly and that, apart from two particular subject areas, the defense would endeavor to have all of his testimony take place in public. The judges found “no compelling reason” to grant the prosecution proposal but added that they would adjudicate any request to move into private session during the course of his testimony.
Nonetheless, judges granted a prosecution request – which the defense did not oppose – prohibiting Ntaganda from discussing his testimony with any non-privileged contacts. Judges noted that this order was applicable to all previous witnesses and Ntaganda should similarly be precluded from discussing his testimony with non-privileged contacts.
Judges also granted a prosecution request that the answers provided by Ntaganda may be used against him, and if he declines to respond to a permissible question, judges may draw adverse inferences as appropriate. The judges noted that, as acknowledged by the defense, once an accused voluntarily testifies under oath, they waive their right to remain silent and must answer all questions put to them.
International Justice Monitor will be following Ntaganda’s testimony in its entirety. For additional information, please see our two-page fact sheet.