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ICC 01 04 02 06 1908 16 05 2017 2 12 EO T, Document to be notified in accordance with regulation 31 of the Regulations of the. The Office of the Prosecutor Counsel for the Defence. Ms Fatou Bensouda Me St phane Bourgon,Mr James Stewart Me Christopher Gosnell. Ms Nicole Samson, Legal Representatives of Victims Legal Representatives of Applicants. Ms Sarah Pellet,Mr Dmytro Suprun,Unrepresented Victims Unrepresented Applicants. Participation Reparation, The Office of Public Counsel for The Office of Public Counsel for the.
Victims Defence,States Representatives Amicus Curiae. Registrar Counsel Support Section,Mr Herman von Hebel. Victims and Witnesses Unit Detention Section,Mr Nigel Verrill. Victims Participation and Reparations,No ICC 01 04 02 06 2 12 16 May 2017. ICC 01 04 02 06 1908 16 05 2017 3 12 EO T, Further to the submission of the Request on behalf of Mr Ntaganda for an order.
precluding the use during the Defence case of Mr Ntaganda s non privileged. telephone conversations from the Detention Centre on 25 April 20171 Defence. Request the Prosecution s response to the Defence motion to supress non. privileged Detention Centre telephone conversations submitted on 8 May 20172. Prosecution Response the Request for leave to reply to the Prosecution s. response to the Defence motion to supress non privileged Detention Centre. telephone conversations filed on 11 May 20173 Defence Request Seeking Leave to. Reply and Trial Chamber VI Chamber s order communicated via electronic. correspondence on 12 May 2017 granting in part the Defence Request Seeking Leave. to Reply Counsel representing Mr Ntaganda hereby submit this. Reply on behalf of Mr Ntaganda to the Prosecution s response to the Request on. behalf of Mr Ntaganda for an order precluding the use during the Defence case of. Mr Ntaganda s non privileged telephone conversations from the Detention. Defence Reply,INTRODUCTION, 1 Pursuant to the Chamber s authorization the Defence hereby replies to the. Prosecution Response in relation to issues 3 5 and 6 identified in the Defence. Request Seeking Leave to Reply,1 ICC 01 04 02 06 1878. 2 ICC 01 04 02 06 1893,3 ICC 01 04 02 06 1901,No ICC 01 04 02 06 3 12 16 May 2017. ICC 01 04 02 06 1908 16 05 2017 4 12 EO T,SUBMISSIONS. I Third Issue, 2 Contrary to the Prosecution s assertion at paragraph 21 the Defence Request is.
not urging the Chamber to ignore clear Appeals Chamber jurisprudence. Indeed the Prosecution s assertion fails to consider that the facts of this case. are clearly distinguishable from the situation addressed in the Ngudjolo. Appeals Judgement 4, 3 The Ngudjolo Appeals Judgement denied the Prosecution s third ground of. appeal which comprised three sub grounds In essence the Appeals Chamber. held that the decision rendered by Trial Chamber II acquitting Mr Ngudjolo. was not materially affected by the fact that the Prosecution was not authorized. to use Registry Reports related to Mr Ngudjolo s non privileged conversations. from the ICC Detention center to cross examine witnesses. 4 In its first sub ground the Prosecution argued that Trial Chamber II erred by. preventing the Prosecutor from getting access to Mr Ngudjolo s recorded. conversations Whereas Trial Chamber II indeed denied the Prosecutor s. requests to gain access to the full recorded conversations of Mr Ngudjolo on. two occasions it is noteworthy that the Appeals Chamber found on appeal. from judgement Prosecutor s second disclosure request that Trial Chamber II. had not erred by denying the Prosecutor full access to Mr Ngudjolo s recorded. conversations The Appeals Chamber noted that the Trial Chamber refrained. from providing full access to the recorded conversations on the basis that such. information fell within the purview of article 8 of the European Convention on. Human Rights or the right to mount a defence which could only be. 4 Ngudjolo Appeals Judgement ICC 01 04 02 12 271,No ICC 01 04 02 06 4 12 16 May 2017. ICC 01 04 02 06 1908 16 05 2017 5 12 EO T, interfered with in accordance with the law and if necessary and. proportionate to the legitimate aim pursued 5, 5 The significance of this holding when considering the Prosecution s second. sub ground in relation to which the Appeals Chamber held that Trial Chamber. II erred by denying the Prosecutor the opportunity to use the Registry Reports in. the trial to cross examine Mr Ngudjolo and witness D03 88 is paramount. 6 Indeed the Appeals Chamber did not hold that the Prosecutor should have. been allowed to use Mr Ngudjolo s conversations to cross examine him and. another witness but rather that it should have been allowed to use redacted. Registry Reports from which personal information and information concerning. his defence strategy was redacted The Appeals Chamber held that the. appeals Chamber notes in this context that the Registry Reports as mentioned. above had previously been screened as regards content and information. considered to relate to Mr Ngudjolo s private life or his defence strategy was. withheld from the Prosecutor and consequently could not have been used. during cross examination 6, 7 What is more the Prosecution in the Ngudjolo trial was seeking to use the.
Registry Reports for a limited number of witnesses Mr Ngudjolo himself and. Prosecution Witness P 250 for the purpose of i assessing the credibility of. inter alia Mr Ngudjolo ii to cross examine Mr Ngudjolo on his statement. reflected in the recorded conversations concerning Mr Katanga s possible. participation in the attack on Bogoro and iii to prove that witness D03 88 was. in collusion with Mr Ngudjolo and was biased 7, 5 Ngudjolo Appeals Judgement ICC 01 04 02 12 271 paras 267 268. 6 Ngudjolo Appeals Judgement para 276,7 Ngudjolo Appeals Judgement para 271. No ICC 01 04 02 06 5 12 16 May 2017,ICC 01 04 02 06 1908 16 05 2017 6 12 EO T. 8 The situation in this case considering inter alia i the fact that the. Conversations sought to be used were obtained unfiltered without any. restrictions ii the fact that the Conversations sought to be used comprise both. personal information as well as information concerning Mr Ntaganda s. defence iii the number of witnesses for whom the Prosecution intends to use. Mr Ntaganda s non privileged conversations from the Detention Center. Conversations iv the fact that the Prosecution team in this case has had. access to such information is prejudicial to the accused as it places the. Prosecution in an unduly advantageous position vis vis the Defence 8 and. v the Chamber s order deciding that as an alternative measure to ensure the. fair and expeditious conduct of the proceedings the Chamber decides that the. Prosecution shall not be allowed to use the material obtained in the context of. the Article 70 proceedings during the Defence s presentation of evidence unless. specifically authorized by the Chamber as necessary for the determination of. the truth pursuant to its duty under article 69 3 of the Statute upon receipt of. a substantiated request to be filed sufficiently in advance of the intended use 9. is entirely different, 9 It simply cannot be said that the Appeals Chamber would have adopted the. same ruling in respect of the situation in this case In fact facing a similar. situation the Appeals Chamber would in all likelihood affirm a ruling. precluding the Prosecution from using both the Conversations as well as the. Registry Reports during the cross examination of either Mr Ntaganda or other. Defence witnesses,II Fifth Issue, 10 The 8 May 2017 Prosecution Response referring to the 28 April 2017 Chamber s.
Decision on Defence request for stay of proceedings with prejudice to the. 8 Decision Denying Stay ICC 01 04 02 06 1883 para 42. 9 Decision Denying Stay para 61,No ICC 01 04 02 06 6 12 16 May 2017. ICC 01 04 02 06 1908 16 05 2017 7 12 EO T, Prosecution 10 Chamber Decision Denying Stay clearly displays the. material relationship between the Prosecution Response and the Chamber. Decision Denying Stay, 11 First the Prosecution making it clear that it intends to use Mr Ntaganda s. Conversations to cross examine no less than twenty Defence witnesses while. not seeking leave to appeal the Chamber Decision Denying Stay establishes. beyond doubt the Prosecutor s view that the Chamber Decision Denying Stay. introduces no more than a mere additional procedural step i e the. Prosecution having to submit a substantiated request sufficiently in advance. leading to the use of the Conversations, 12 This is significant if only because the aim of the measure imposed by the. Chamber as stated in the Chamber Decision Denying Stay is to ensure the fair. and expeditious conduct of the proceedings as a result of the prejudice to Mr. Ntaganda caused by the Prosecution having had access to information. including information on the whereabouts of the accused and other individuals. at the relevant times names of individuals who could have provided for the. Defence and potential witnesses and which may therefore be relevant to. Defence strategy11 placing the Prosecution in an unduly advantageous. position vis vis the Defence, 13 Evidently the alternative remedy ordered in the Chamber Decision Denying.
Stay is disproportionate in relation to the prejudice intended to be cured. Leaving open the possibility for the Prosecution to use the Registry Reports. concerning Mr Ntganda s Conversations as well as the possibility for the. 10ICC 01 04 02 06 1883, 11The Defence recalls its submission in its Request Seeking Leave to Appeal ICC 01 04 02 06 1888. paragraph 32 that the Chamber failed to take important Defence submissions into consideration. namely that in the Conversations Mr Ntaganda provided or received indications as to information. that he considered useful in countering allegations made by the Prosecution and explained how such. information could be obtained and indicated flaws in the Prosecution s theory. No ICC 01 04 02 06 7 12 16 May 2017,ICC 01 04 02 06 1908 16 05 2017 8 12 EO T. Prosecution to use the Conversations as necessary for the determination of the. truth pursuant to its duty under article 69 3 without any additional guidance. the Chamber Decision Denying Stay clearly does not go far enough Hence the. Defence Request, 14 Taking into consideration the Prosecution s statement repeated on more than. one occasion that it has accessed records of Mr Ntaganda s non privileged. communications solely with the purpose of protecting the witnesses in this case. and investigating alleged violations of article 70 of the Statute in conjunction. with the failure of the Prosecution to provide any concrete information. concerning its intended use of the Conversations to cross examine Mr. Ntaganda or Defence witnesses it stems from the Chamber Decision Denying. Stay that it is plainly insufficient to ensure the fair and expeditious conduct of. the proceedings, 15 In fact the Prosecution s stated aim to use the Conversations to cross examine. at least twenty Defence witnesses regardless of the procedure put in place. demonstrates the Prosecution s intent to support its broad allegations of. coaching of Defence witnesses which in turn would seriously impact both the. fairness and the expeditious conduct of the proceedings. 16 In light of the above the Defence Request is certainly neither overbroad nor. premature The Chamber must adjudicate the Defence Request at this time. stopping the Prosecution in its tracks by ordering that there be no use by the. Prosecution of Mr Ntaganda s Conversations or Registry Reports related to the. same during the presentation of the case for the Defence. III Sixth Issue, 17 Further to the Prosecution s disclosure of the recordings of Mr Ntaganda s.
Conversations towards the end of the presentation of its case leaving aside for. No ICC 01 04 02 06 8 12 16 May 2017,ICC 01 04 02 06 1908 16 05 2017 9 12 EO T. the moment the resulting prejudice to the Accused caused by inter alia i the. Prosecution having knowingly obtained all of Mr Ntaganda s Conversations. comprising detailed confidential Defence information and ii the Prosecution. having presented most of its case while being in the possession of confidential. Defence information without informing the Defence the Defence argued that. the right of Mr Ntaganda to have adequate time and facilities for the. preparation of his defence justified an extension of time to review and analyze. the Conversations The Defence submitted a number of related requests. 18 Despite having expressed the view that the Conversations were important for. the Defence for various reasons including for the selection of Defence. witnesses the Prosecution systematically opposed all Defence requests to have. the time necessary to complete this task, 19 Even though the Defence managed to obtain additional resources from the. Registry for the purpose of securing the services of additional team members to. review the Conversations all Defence requests for additional time were denied. by the Chamber, 20 As a result the Defence has been unable to review all of the Conversations. before the dates set by the Chamber for the submission of the Defence further. provisional list of witnesses and Defence final list of witnesses Regardless. even though the Defence argued that it was not in a position to select Defence. witnesses before completing its review of the conversations the Defence was. ordered to submit its final list of witnesses without having completed its. review of the Conversations, 21 On 5 May 2017 the Defence managed to obtain further additional resources to. extend the employment of the additional team members who joined the team. No ICC 01 04 02 06 9 12 16 May 2017,ICC 01 04 02 06 1908 16 05 2017 10 12 EO T.
in January 2017 for a period of four supplementary months 12 Regardless even. though the Defence explained that it was not possible to complete the review of. the Conversations before the end of this additional four month period and that. as a result the Defence would not be ready to begin the presentation of its case. the Defence was ordered to begin the presentation of the case for the Defence. on 29 May 2017, 22 The Chamber has expressed the view that the Conversations must be. considered in their appropriate context noting that they do not relate directly. to the charges and are for a large part devoid of any direct materiality to these. proceedings or relate to peripheral issues 13, 23 When the Defence argued before the Chamber Decision Denying Stay was. rendered that the absence of directions issued by the Chamber regarding the. use that can or cannot be made of the Conversations significantly increases. their materiality based on the Prosecution s expressed intent to use this. material the Prosecution submitted that the Defence argument was. speculative and illogical 14 The Prosecution s submission compounds the. argument that due process is not part of its r pertoire. 24 At paragraph 34 the Prosecution advances that If it is true that the. implicated Defence witnesses were instructed persuaded or influenced. through calls from the Accused any evaluation of their testimonies. without these facts would be inherently flawed 15 The Prosecution omits to. consider in this regard that its allegations of coaching can be addressed when. cross examining Defence witnesses including Mr Ntaganda should he elect to. testify without using the conversations In particular the if can only be. 12 Decision on the request for additional investigative resources submitted by Counsel for Mr Bosco. Ntaganda on 28 April 2017 05 May 2017,13 ICC 01 04 02 06 1832 para 17. 14 ICC 01 04 02 06 1845 para 19,15 ICC 01 04 02 06 1893 para 34. No ICC 01 04 02 06 10 12 16 May 2017,ICC 01 04 02 06 1908 16 05 2017 11 12 EO T.
established based on a determination of the truth or falsity of the propositions. which in turn is the very purpose of this trial Introducing Mr Ntaganda s. conversations on the supposition that the content of those conversations. involves falsehoods is premature prejudicial and ultimately irrelevant to the. determination of the truth or falsity, 25 More importantly the Prosecution does not explain how this exercise using. conversations which took place many years after the facts of this case would. contribute to establishing the truth regarding the charges laid against Mr. 26 On the other hand in addition to the factors mentioned above the potential. prejudice to Mr Ntaganda is clearly identified if only because of inter alia i. the volume of conversations ii the fact that the Conversations comprise. private information as well as detailed information related to Mr Ntaganda s. defence iii the insufficient time provided for the review and analysis of the. Conversations iv the fact that the Conversations have been in the possession. of the Prosecution for a very long period of time during which it presented its. case without the Defence being informed v the fact that the original. conversations are available only in audio recording format and vi the lack of. reliability of the summaries translations of the conversations produced within. the Office of the Prosecutor and vii the lack of reliability of the transcripts. and translations of the summaries produced within the Office of the. Prosecutor, 27 If the weight and the importance to be attached to the conversations was so. high the Prosecution should have requested an adjournment of the. proceedings in this case for the purpose of adjudicating contempt charges before. moving on to the merits of the charges laid,No ICC 01 04 02 06 11 12 16 May 2017. ICC 01 04 02 06 1908 16 05 2017 12 12 EO T, 28 The fact that Mr Ntaganda has not been provided with an opportunity to. challenge the Prosecution s allegations of coaching and or interference in full. respect of due process standards is also an important component of the. potential prejudice to him and the requirement to preclude the Prosecution. from using this material during the presentation of the case for the Defence. RELIEF SOUGHT, 29 The Defence respectfully requests the Chamber to.
TAKE INTO CONSIDERATION the above submissions and arguments in. reply to the Prosecution Response and,GRANT the relief set out in the Defence Request. RESPECTFULLY SUBMITTED ON THIS 16TH DAY OF MAY 2017. Me St phane Bourgon Counsel for Bosco Ntaganda,The Hague The Netherlands.


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