Decision adjourning the commencement of Uhuru Kenyatta trial.pdf

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CourPna leI n t e r n a t i o n a l eI n t e r n a t i o n a lC r im i n a lCou r t

^ >mOriginal: English No.:ICC-01/09-02/11

Date: 31 Octob er 2013

TRIAL CHAMBER V(B)

Before: Judge Ku niko O zaki , Presiding JudgeJudge Robert FremrJudge Chile Eboe-Osuji

SITUA TION IN THE REPUBLIC OF KENYAIN THE CASE OF

THE PROSECUTO R v. UHURU MU IGAIKENYATTA

Public

Decision adjourning the commencement of trial

N o.ICC-01/09-02/11 1/6 31 Oc tober 2013

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Tria l Chamber V(B) ( 'Chamber ' o r 'Tr ia l Chamber ' ) o f the Internat ional Criminal Court('C ou rt '), in the case of The Prosecutor v. Uhuru Muigai Kenyatta, ha vi ng reg ard to A rticle64(2) of the Rome Statute ( 'Statute ') , Rule 132 of the Rules of Procedure and Evidence( 'Rules') and Regulat ion 35(2) of the Regulat ions of the Court ( 'Regulat ions') , issues thefollowing Decision adjourning the commencement of t rial .

1. O n 25 Octobe r 2013, the defence team for Mr Kenyatta ('Defence') filed the 'DefenceApplicat ion to Vacate the 12 November 2013 Date for the Commencement of Trial '( 'Applicat ion') .^ The Defence requests that the trial date of 12 November 2013 b epostponed imtil at least 12 February 2014 because of, inter alia, '[t]he need for theProsecution to invest igate the facts and matters raised by the Defence Applicat ionfor a Per m an ent Stay of Procee dings du e to Abus e of Process'.^

2. On 30 October 2013, after an email wa s sent from the Ch am ber m ak ing this date th edea dline to resp on d to the Applicat ion,^ the Office of the Pros ecutor ( 'Prosecution')fi led i ts response ( 'Response ') . On the g rou nd raised b y the D efence that isidentified above, the Prosecution responds that ' [w]hile these al legations - even ifthey are ult imately established on the facts - do not consti tute grounds for a stay ofproc eedin gs, the Prosecu tion accepts that they m erit further invest igation' .^ TheProsecution further submits that addit ional t ime would allow it to present i tsevidence in a ' logical and coherent sequence' , referencing a 23 October 2013decision of the Chamber which, after granting the Prosecution's request to add anaddi t ional Mungiki insider wi tness, prec luded the Prosecut ion from cal l ing

ICC-Ol/09-02/1 l-835-Red (confidential version notified same day).^D ecision on comm encement date of trial, 20 June2013, ICC-01/09-02/11-763-Red.^ Application, ICC-01/09-02/11-835-Red, paras 2(i), 11-12 and 32, referencing Defence Application for a PermanentStay of the Proceedings due to Abuse of Process, 10 October 2013, ICC-01/09-02/11-822-Red (confidential versionnotified same day).^Email communication from Legal Officer oftheChamber to the parties and participants on 25 October 2013 at 18:25.^Prosecution response to the Defence application to vacate the 12 November 2013 date for the commencement of trial,30 October2013,ICC-01/09-02/11-842-Red (confidential version notified same day).^R esponse, ICC-01/09-02/11-842-Red, para. 9 .N o .ICC-01/09-02/11 3/6 31 O cto be r 2013

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Mu ngiki witnesses u ntil at least the end of January 2014 so as to give the Defence anadeq uate o ppo rtun ity to investigate the new prop osed evidence.^ The Prosecutionultimately su bm its that it 'does not op pose the Defence Application, save in that th enew date for the comm encement of the trial should be fixed as Monday 3 February2014 [...] .8

3. On31October2013,the Legal Representative for Victims( LRV )filed a response tothe Application.^ This response w as filed after the 30 October2013deadline, and theChamber does not accept that waiting until the Prosecution Response was filed inorde r to pro vide 'an informed response'^ constitutes a reason outs ide the LRV'scontrol within the meaning of Regulation 35(2) of the Regulations.^^ Nevertheless,the Chamber notes the LRV's submissions that a postponement is likely to be metw ith 'de ep d isappo intm ent and frustration by the victims of this case'.^^

4. Pu rsua nt to Rule 132(1) of the Rules, the Chambe r ma y postpo ne the date of thetrial at the requ est of the P rosecution o r the Defence. ^ Any such pos tpon em entshall be gran ted in accordance w ith the Cha m ber's obligation to ensure tha t a trial isbo th fair and expeditious.^^

5. The Chamber notes that the parties are in agreement on postpo ning the trial dateuntil February 2014 in order to give the Prosecution additional time to investigate

^Response, ICC -01/09-02/11- 842-Red, paras 10-13, referencing Decision on Prosecution request to add P-548 and P-66 to its witness list, 23 October2013, ICC-01/09-02/11-832.^Respon se, ICC-01/09-02/11- 842-Red, para. 14.^Victim s' response to the public redacted version of the defence application to vacate the 12 november 2013 date forthe conmiencement of trial , 31 October2013,ICC-01/09-02/11-845.*ICC -01/09-02/11-845, para. 7.^ Regulation 35(2) of the Regulations provides, in relevant part, that: '[a]fter the lapse of a time limit, an extension oftime may only be granted if the participant seeking the extension can demonstrate that he or she was unable to file theapplication within the time limit for reasons outside his or her control'.^ ICC-01/09-02/11-845, para. 12.^^Rule 132(1) of the Rules provides that: '[p]romptly after it is constituted, the Trial Chamber shall hold a statusconference in order to set the date of the trial. The Trial Chamber, on its own motion, or at the request of the Prosecutoror the defence, may postpone the date of the trial. The Trial Chamber shall notify the trial date to all those participatingin the proceedings. The Trial Chamber shall ensure that this date and any postponements are made public'.^ Article 64(2) of the Statute.No.ICC-01/09-02/11 4/6 31October 2013

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recent factual al legations raised by the Defence. The Chamber accepts the part ies'submissions tha t a postponement i s warranted and vacates the t r ia l da te of 12No vem ber 2013. This decision is wi th ou t pre judice to the Ch am ber 's v iews on theother reasons raised by the part ies for adjourning the trial . However, noting theinterest of just ice, the fairness and expedit iousness of the proceedings and, inpar t icular , the vic t ims and wi tnesses, the Chamber deeply regre ts tha t repeatedadjournments of the t r ia l have been necessary because one or both par t ies haverequired more t ime to prepare . The Chamber urges both par t ies to acce lera te the i rprep ara t ion in order to ensu re tha t no further pos tpon em ents are req uired.

6. The part ies disag ree as to wh ethe r the trial sho uld com me nce in the first or secondfull week of February 2014. The Chamber considers that neither party hasspecifically justified its chosen date in a convincing marmer.^^ However, noting theminimal difference between these two t imeframes, the Chamber has selected atenta t ive t r ia l commencement date tha t represents a compromise be tween theproposals of the part ies.

F O R T H E F O R E G O I N G RE A S O N S , T H E CH A M BE R H EREBYVAC ATES the t r ia l com men cem ent date of Tuesday, 12 No vem ber 2013 andPROVISIONALLY SETS a t r ia l commencement date of Wednesday, 5 February2014.

* The Defence presents no explanation for why 12 February 2014 has been specifically selected. The Prosecution'sstated justification is based only on starting the next working day after the expiry of the time bar impacting the order ofwitnesses, as fixed in the Chamber's 23 October 2013 decision. Response, ICC-01/09-02/ll-842-Red, para. 14,referencing ICC-01/09-02/11-832, para. 14.N o. ICC-01/09-02/11 5/6 31 O cto be r 2013

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Done in both English and French, the English version being autho ritative.

j ^ l y ^ .1 -,f^Judge Ku niko Ozak i, Presiding

Judge Robert Fremr e Eboe-Osuji

Dated31October 2013At The Hagu e, The N etherlands

N o.ICC-01/09-02/11 6/6 31October 2013

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Decision adjourning the commencement of Uhuru Kenyatta trial.pdf