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ICC Lifts Restrictions on Lubanga’s Communications and Visits

International Criminal Court (ICC) judges have withdrawn the restrictions they had imposed on war crimes convict Thomas Lubanga’s communications and visits. The judges found that Lubanga currently presents little risk of interfering with witnesses in the trial of fellow Congolese national Bosco Ntaganda.

Lubanga, who is serving what remains of his 14-year sentence from a jail in his home country of the Democratic Republic of Congo, had restrictions placed upon him in June 2015 after he was implicated in interfering with witnesses in Ntaganda’s trial. Lubanga and Ntaganda served in the armed group known as the Union of Congolese Patriots (UPC) as a commander-in-chief and a deputy chief, respectively.

Besides imposing restrictions on Lubanga’s contacts, judges also ordered active monitoring of his non-privileged telephone conversations at the ICC detention center. When Lubanga was transferred to Congo in December 2015 to serve the remainder of his term these restrictions were maintained at the local prison.

Last May, in response to judges’ request for submissions on reviewing the restrictions, the prosecution urged that they be maintained. The prosecution asked the judges to prevent Lubanga from communicating with all of Ntaganda’s defense witnesses and three other individuals who had been previously removed from Lubanga’s list of contacts.

The prosecution argued that Lubanga still posed a risk to confidential information, the safety of prosecution witnesses, and the integrity of the proceedings. It further argued that there was information confirming that Lubanga had disseminated confidential information and was involved in pressuring prosecution witnesses to stop cooperating with the ICC.

Prosecutors also claimed that Lubanga used his non-privileged communication line to coach witnesses on behalf of Ntaganda, disseminate defense strategy, and instruct his associates to prepare witnesses.

Defense lawyers argued that the restrictions were no longer needed as the prosecution in Ntaganda had completed presenting its evidence. Further, they emphasized there was no evidence that Lubanga had interfered with witnesses, either in his own trial or Ntaganda’s.

Defense lawyers submitted that although an unnamed witness claimed to have been pressured in relation to his testimony, there was no evidence of Lubanga’s involvement. Furthermore, they argued that phone call records produced by the prosecution did not indicate that Lubanga attempted to interfere with the administration of justice. According to the defense, the calls demonstrated the care Lubanga took to ensure that nothing altered the sincerity of the testimony presented before the court.

Judges ruled that they were not persuaded by the prosecution’s argument that the restrictions should remain in place on the basis that prosecution’s witnesses remained vulnerable to pressures to recant and to retaliation. The chamber considered that “the risk of interference with prosecution witnesses is significantly lower at the current stage of the proceedings.” The last prosecution witness testified last February, while victims’ lawyers concluded presenting their evidence two months later.

Judges ruled that there was no new information indicating that Lubanga had directly or indirectly attempted to interfere with witnesses or otherwise pervert the course of justice, or that there was any specific motivation to do so. They noted that the examples referred to by the prosecution dated back to 2013, a period prior to the imposition of the restrictions on Lubanga.

Judges thus determined that maintaining restrictive measures on Lubanga would not be proportionate to his right to family and private life.

In 2015, judges trying Ntaganda imposed restrictions on his communications, and in March this year, appeals judges upheld the trial chamber’s decision to maintain those restrictions. When trial judges declined to remove the restrictions last October, Ntaganda boycotted hearings and went on a 14-day hunger strike.