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Ntaganda Appeals Hearing Postponed Over COVID-19

International Criminal Court judges have indefinitely postponed the oral hearing in former Congolese rebel commander Bosco Ntaganda’s appeals against his conviction and 30-year prison term. The hearing was scheduled to begin June 29, 2020. The Appeals Chamber cited the COVID-19 pandemic as the reason for the postponement.

In a June 5 order, the Appeals Chamber said that at the time it scheduled the hearing, the impact of the COVID-19 pandemic was not apparent. Judges indicated that the court’s systems were not ready to handle virtual hearings and noted that a hearing in the case of Laurent Gbagbo and Charles Blé Goudé, which had been scheduled for May 27 and 29, was postponed in order to allow the court to finalize technical preparations.

The chamber said if it becomes possible to hold a hearing at a later date, the arrangements would be communicated. It noted, however, thatthe postponement meant that any hearing would take place later than envisaged in the Chambers Practice Manual, which was amended in 2019 to add specific deadlines for rendering decisions and judgments. In particular, paragraph 90 of the manual provides that, if an oral hearing is to be held in an appeal against a conviction, acquittal, or reparations order, it shall take place within three months of the filing of the response to the appeal brief. The prosecutor responded to Ntaganda’s appeals briefs last April.

Nonetheless, the appeals judges stated that they were satisfied that the COVID-19 pandemic and the resulting difficulties in the court’s operations constituted exceptional circumstances within the meaning of paragraph 93 of the manual. This paragraph provides that any extension of the deadlines must be limited to exceptional circumstances and should be explained in detail in a public decision.

Last month, Ntaganda’s defense asked judges to be mindful of the logistical challenges and fair trial considerations that would arise if they were to consider holding a virtual hearing. The issues raised by the lawyers included the ability of defense teams to install and run robust systems to handle an online hearing and the ability to maintain the confidentiality of the proceedings when parties are pleading from their homes.

Other Trial Delays

Similarly, in the case of Gbagbo and Blé Goudé, lawyers asked judges to cancel the hearing on the prosecution’s appeal against the acquittal of the duo. They said technical arrangements proposed by the court’s Registry raised several substantive questions about the fairness of the proceedings. The lawyers asked judges to schedule an oral hearing when all parties and participants can physically attend. Furthermore, they argued that a virtual hearing would deny Blé Goudé his right to be present at the hearing under Article 67 of the Rome Statute, to have proper facilities to conduct his defense, and to have his co-counsel physically present.

For its part, the prosecution submitted on May 8 that conducting a hearing at the court premises during the month, and in the manner suggested by the Registry, would pose safety and health risks to those involved. The prosecutor also said whatever modalities the court adopts for a virtual hearing; it should be conducted in a way that fully protects the integrity of the proceedings, the rights of Gbagbo and Blé Goudé, and those of the prosecution and victims’ lawyers. The prosecutor supported the idea of postponing the hearing, until the court’s systems had been upgraded to handle a virtual hearing.

In postponing the Gbagbo hearing, the Appeals Chamber ordered the Registry to continue to identify and finalize any technical parameters on the form of any future hearing to be scheduled. The chamber said it was faced with “what is clearly a force majeure,” and it had become evident that the chamber must take measures to allow the appeal proceedings to proceed expeditiously, while ensuring that the applicable rights of all, including the acquitted persons, are not unduly affected.

Blé Goudé’s lawyers have also argued that several complex and novel issues raised in the appeal, which arose for the first time at the ICC during the Gbagbo and Blé Goudé case, necessitate scheduling an oral hearing. They cited the nature of no case to answer proceedings and their functioning in the ICC system, including the applicable standard of proof.

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