ICC Decision on the Prosecutions Application for Extension of Time Limit for Disclosure

8/6/2019 ICC Decision on the Prosecutions Application for Extension of Time Limit for Disclosure

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CourPna l eI 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 lC o u r t

Original: English No.: ICC-01/09-02/11Date: 10 M ay 2011

PRE-TRIAL CHAMBER II

Before: Judg e Ekaterina Trendafilova. Single Judge

SITUAT ION IN THE REPUBLIC OF KENYAIN THE CASE OF THE PROSECUTO R V. FRANCIS KIRIMIMUTHAU RA,

UHURU MUIGAIKENYATTA AND M OHAMM ED HUSSEIN ALIPublic Document

Decision on the "Pros ecution's A pplication for Extension of Tim e Limit forDisclosure"

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Decision to be notified, in accordance with regulation 31 of the Regulations oftheCourt, to:

The Office of the ProsecutorLuis Moreno-Ocam po, ProsecutorFatou Bensouda, Deputy Prosecutor

Counsel for Francis Kirimi MuthauraKarim A. Khan and Kennedy OgettoCounsel for Uhuru M uigai Kenyat taSteven Kay and G illian H igginsCounsel for Mohammed Hussein AliEvans Monari, John Philpot, a ndGershom Otachi Bw'omanwa

Legal Represe ntatives of the Victims Legal Represe ntatives of the Ap plicants

Unrepresented Vict ims Unrepresented A pplicants forParticipation/Reparation

The Office of Public Counsel forVictims

The Office of Public Counsel for theDefence

States Representatives Amicus Curiae

REGISTRYRegistrar & De puty RegistrarSilvana Arbia, RegistrarDidier Preira, Deputy-RegistrarVictims and Witnesses Unit

Defence Support Section

Detention Section

Victims Participation and Repa rations Othe rSection

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Jud ge E kate rina T rend af i lova, act ing as Single Judg e on behalf of Pre-Trial Ch am berII ( the "Chamber") of the In ternat ional Criminal Court ( the "Court") ,^ renders th isdecision on the "Prosecution's Application for Extension of Time Limit forDisclosu re" ( the "Request") .^1. O n 15 Dec emb er 2010, the Prosec utor subm it ted the "Pro secuto r 's A ppl icat ionPursuant to Art icle 58 as to Francis Kirimi Muthaura, Uhuru Muigai Kenyat ta andMohammed Husse in Al i " .^2. On 8 M arch 2011, the Cham ber, by majority , decided to sum m on Francis KirimiMuthaura , Uhuru Muiga i Kenyat ta and Mohammed Husse in Al i (co l lec t ive ly , the"suspec ts") to appe ar before the Court.^3 . On 3 1 M arch 2011, the Cha mb er received the "Ap plicat ion on Behalf of theGovernment of the Republ ic of Kenya Pursuant to Art icle 19 of the ICC Statu te",whereby the Government of the Republ ic of Kenya requested the Chamber todetermine that the case agains t the suspects is inadmiss ib le ( the "Admiss ib i l i tyChallenge").^4. O n 7 Ap ril 2011, the Single Jud ge issue d th e "Dec ision Setting the Reg ime forEvidence Disclosure and Other Related Matters", whereby, inter alia, principles as tothe d isclosure of evidence between the part ies and i ts communicat ion to theCh am ber ha ve been es tabl ished ( the "Disclosure Decis ion").^5. D urin g the in it ia l app eara nce h earin g held on 8 Apri l 2011, the Cham ber, interalia, set the date for the commencement of the confirmation of charges hearing for 21Septem ber 2011 and conve ned a s tatus conference w ith a v iew to d iscuss ing m atters

1 Pre-Trial Chamber II , "Decision Designating a Single Judge", ICC-01/09-02/11-9.2ICC-01/09-02/11-82.3 ICC-01/09-31-Conf-Exp and its Annexes.4 Pre-Tria l Cham ber I I , "Decis ion on the Prosecutor ' s Appl icat ion for Sum mon ses to App ear forFrancis Kirimi Mutha ura , U hu ru M uigai Kenyat ta and M oha mm ed Husse in Ali" , ICC-01/09-02/11-01.5ICC-01/09-02/11-26.6 Pre-Trial Cham ber II , "Dec ision Setting the Regim e for Evidence Disc losure and O ther R elatedMa tters" , ICC-01/09-02/11-48.

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relevant for the purposes of es tabl ishing an adequate calendar of the d isclosureproceedings.^ The status conference took place on 18 April 2011 in the presence of theProsecutor , the Defence teams of the suspects and the representat ives of theRegistrar.

6 . O n 20 Ap ri l 2011, the Single Judg e issued the "D ecis ion on the 'Prose cut ion 'sappl icat ion request ing disclosure after a f inal resolut ion of the Government ofKenya 's admiss ib i l i ty chal lenge ' and Establ ishing a Calendar for Disclosure",whereby the Single Judge, inter alia, rejected the Prosecutor's request to suspend thedisclosure proceedings unt i l a f inal determinat ion of the Admiss ib i l i ty Chal lenge andestabl ished an art iculate calendar for the conduct of the d isclosure proceedings ( the"Calendar for Disclosure") .^ According to the Calendar for Disclosure, the evidenceon which the Prosecutor in tends to rely for the purposes of the confirmat ion hearingis to be d iv ided in to three groups on the bas is of the t ime when each piece ofevidence has been col lected by the Prosecutor . Three deadl ines have beenestabl ished, depending on the group under which each piece of evidence fal ls , e i therfor the disclosure to the Defence of the evidence for which no redaction is needed orfor the request to the Chamber to authorize properly jus t i f ied proposals forredact ion s . The three de adl ine s es tabl ished are the fo l lowing: Friday, 3 June 2011 forthe evid ence collected before 15 De cem ber 2010; Frida y, 24 Jun e 2011 for the evid enc ecol lected betw een 15 Dec emb er 2010 and 3 1 Ma rch 2011; and Friday, 29 July 2011 forthe evidence collected after 31 March 2011.

7. O n 2 M ay 2011, the Pro secu tor fi led his Requ est. The relief sou gh t ther eby is thefollowing:

[T]he [Prosecutor] reques ts the Chamber to author ize the d isclosure of thewitnesses s ta tements col lected that require redact ions af ter a proper rvaluat ionof the security in Kenya within the time frame adopted in the Firs t DisclosureDecis ion .

7ICC-01/09-02/11-T-1-ENG.8ICC-01/09-02/11-T-2-ENG.9 Pre-Trial C ham ber II, ICC-01/09-02/11-64.

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The [Prosecutor] wi l l d isclose o ther evidence in accordance with the SecondDisclosure Decis ion . The [Prosecutor] under takes to submit proposals forredact ion s in two s tages , the fi rs t grou p on 24 June an d the second grou p on 29July 2011.^0

8. The Single Jud ge n otes articles 51(5), 54, 61, 67 an d 68 of the Rom e Sta tute (the"St atute "), rules 76-83 an d 121 of the Rules of Pr oc ed ure a nd E vidence (the "Ru les")and regula t ion 35 of the Regu lat ions of the Court ( the "R egulat ions") .

9. The Single Jud ge is of the view th at, by his Req uest, the Prose cuto r is essentiallyseeking a reconsiderat ion of the Calendar for Disclosure. This is shown by thearguments put forward by the Prosecutor with respect to the prejudice al legedlycau sed by th e Cale nda r for Disclosure to his fair trial right as we ll as the relief sou ghtin the Request .

10 . In this respect, the Single Judge recalls that, as consistently held by theestabl ished jurisprudence of the Pre-Trial Chambers of the Court , the s tatu toryframework set out by the Statu te and the Rules do not provide for a motion forreconsiderat ion as a procedural remedy agains t any decis ion taken by the Chamberor the Single Judge.^^ Nevertheless, the Single Judge shall address the substance ofthe Prosecutor 's argument in th is regard , in order to emphasize the importance andproper unders tanding of the Calendar for Disclosure.

11. The Prosecutor seeks that the deadl ine for the submiss ion of proposed redact ionsbe withdrawn and suggests to provide the Single Judge with an undertaking as to h iscommitment to f i le before the Chamber proposals for redact ions in two s tages , the

10 Reques t , paras . 32 and 33 .1 See e.g. Pre-Trial Cha m ber II , "Dec ision on the P rose cuto r 's Positio n on th e Decision of Pre-TrialCh am ber II To Redact Factual Descriptio n of Crim es from the War ran t of Arrests , Mo tion forReconsideration, and Motion for Clarif ication" ICC-02/04-01/05-60; Pre-Trial Chamber I , "Decision onthe Prosecu tion M otion for Redaction ", ICC-01/04-01/06-123; Pre-Trial Cha mb er I , "Decision on theProsecution Motion for Reconsideration and, in the alternative. Leave to Appeal", ICC-01/04-01/06-166; Pre-Tr ia l Chamber I , "Decis ion on the 'Demande des reprsentants lgaux de VPRSl, VPRS2,VPRS3, VPRS4, VPRS5, VPRS6 et a/0071/06 aux fins d 'accder au do cu m en t confidentiel dp os pa r leConse il de direction d u Fo nds d 'affectation spciale au profit de s victimes le 7 fvrier 2008'", ICC-01/04-457; Pre-Trial Cham ber I , "Dec ision on the Defence for Ma thieu N gud jolo C hui 's Re questconcerning translation of documents" ICC-01/04-01/07-477.

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first gro up on Frid ay, 3 June 2011 an d the sec ond g ro up on Friday , 8 July 2011. Insupport of th is request the Prosecutor essent ial ly argues that the deadl ines set in theCalendar for Disclosure are wel l in advance of the legal deadl ines provided by thes tatu tory documents of the Court and are also inconsis tent with the "t ime frame fordisclosure adopted by the (. . .) Disclosure Decision".^^

12 . At first the Single Judge observes that, contrary to the Prosecutor's assertion,there is no contradict ion or inconsis tency between the Disclosure Decis ion and theCalendar for Disclosure. As clearly indicated therein, the Disclosure Decision onlyintended to set general principles relat ing to d isclosure according to the legalins truments of the Court . No t ime frame for the d isclosure proceedings has beenprovided thereby. To the contrary , in the Disclosure Decis ion i t i s c learly s tated that"[w]i th respect to the d ifferent requests related to protect ive measures for witnessesincluding redact ions , the Single Judge wishes to make clear that any such requestmust be submit ted as soon as pract icable, but no later than the date which shal l bespecified in a calendar to be issued in due course".^^ Thereafter, the Single Judgeconvened a status conference for the specific purpose of receiving relevantinformation in order to establish an articulate calendar for disclosure.^^ Therefore, theCalendar for Disclosure eventually issued by the Single Judge is not in conflict withthe Disclosure Decis ion, but rather complements i t .

13 . Furthermore, the Single Judge recalls that the deadlines reflected in rule 121(3)-(6)of the Rules are only indicative of the minimum time limits for the disclosure of theevidence between the part ies and i ts communicat ion to the Chamber.^^ In th isrespect, in the Ca len da r for Disclo sure, the Single Jud ge clarified that:

In particular, rule 121(3) of the Rules mandates that the Prosecutor shall provide adocument contain ing a detai led descr ip t ion of the charges together with a l is t ofevidence, for the purposes of the confirmation hearing, no later than 30 days before the

2 Reques t , paras . 1 , 3 and 20 .13 Disclosure Decis ion , para . 13 .14ICC-01/09-02/11-T-1-ENG, from pag e 16, line 5 to pag e 17, l ine 25. The sta tus con ference took placeon 18 April 2011: see ICC-Ol/Ol-Ol/l l -T-2-ENG .15 See Disclo sure Decision, para. 11 an d Ca lend ar for Disclosu re, para. 13.

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date of the com me ncem ent of such hear ing . Therefore , the d isclosure from the Prosecutorto the Defence shall be completed 30 days before the date of the hearing at the latest.Fiowever, under article 51(5) of the Statute, the provision of rule 121(3) of the Rules is tobe read agains t the backdrop of , and subject to s ta tu tory provis ions that guarantee therights of the Defence and, in particular, the right of the suspects to have adequate time fora meaningful preparation of their defence pursuant to article 67(l)(b) of the Statute. Inthis respect, the Single Judge recalls article 61(3)(b) of the Statute which provides that theperson shall be informed within a reasonable time before the confirmation hearing of theevidence on which the Prosecutor in tends to re ly a t the hear ing . In the same vein , ru le 76of the Rules es tabl ishes that the Prosecutor shal l provide the Defence with the names ofwitnesses whom he intends to call to testify as well as the copies of any prior s tatementsm ad e b y t he m sufficiently in advance to enable the adequate preparation ofthe defence}^

14 . The Single Judge recal ls her responsibi l i ty to ensure that the d isclosureproceedings takes p lace under sat is factori ly condi t ions and that the r ights of thedefence as enshrined in the legal instruments of the Court are fully respected. To thispurpose rule 121(2) of the Rules states that the Chamber "shall take the necessarydecis ions regarding disclosure". Bearing in mind the principles recal led above as setout in the Calendar for Disclosure, the Single Judge reiterates that, with a view toguaranteeing the fai rness and the expedi t iousness of the d isclosure proceedings ,specific deadlines for the submission of justified proposals for redactions arenecessary . The Prosecutor 's Request cannot therefore be granted to the extent that i tadvocates the non-binding nature of the dates indicated by the Prosecutor for h issubmiss ion of proposals for redact ions .

15 . The Single Judge however notes that the Prosecutor 's Request also includesreference to regulation 35 of the Regulations, as a legal basis for the relief sought,^^and, thus , can be read as an appl icat ion for extension of t ime l imit under thatprovis ion . Accordingly , the Single Judge shal l consider whether the requirement forextension of the time limit is met, namely whether good cause for such extension iss h o w n .

1 Calend ar for Disclosu re, para. 14 (emph asis in the text) .17 Request, para. 20.

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16 . In th is respect , the Single Judg e notes the P rosecu tor 's sub miss ion that 88% of h isevide nce h as bee n collected before 15 De cem ber 2010^^ and , therefore, falls und er thefi rs t group of evidence for which proposed redact ions are to be submit ted to theCh am ber by F riday, 3 June 2011. M ore specif ically , the Prose cutor asserts that ,according to the Ca lenda r for Disclosure, he is require d to review b y 3 June 2011, 502doc um ents , co nst i tu t ing 7 ,230 page s or nearly 17% of the to tal do cum en t to bedisclosed in redacted form.^^ A large part of the Prosecutor's evidence for whichredactions are necessary is thus to be reassessed, in l ight of the current securitysituation in the field, in order for him to comply with the first deadline established inthe Calendar for Disclosure for the submission of proposed redactions.^^ In thisrespect , the Single Judge acknowledges and endorses the Prosecutor 's submiss ion asto the need for an in tensive and careful work to be conducted by him with a v iew tosubmit t ing to the Chamber properly and accurately jus t i f ied proposals forredactions.^^ Finally, the Single Judge takes note of the Prosecutor's submission that anumber of redact ions could turn out to be unnecessary , due to the poss ib i l i ty thatlesser in trus ive protect ive measures for witnesses o ther than redact ions would soonbe available.^^

17 . Notwiths tanding the above, the Single Judge recal ls that the Calendar forDisclosure wa s issued m ore than 6 we eks in advanc e of the expirat ion of the f i rs tdeadline for the submission of proposals for redactions for evidence collected before15 De cem ber 2010. In this respect, the Single Jud ge expe cts that the Prose cuto r ha dalready conducted a prel iminary r isk assessment in relat ion to the witnesses onwhom he in tends to rely for the purposes of the confirmat ion hearing and that only areassessment was yet be conducted at the t ime of the issuance of the Calendar forDisclosure. In this sense, the Single Judge sti l l considers 6 weeks to be, in the currentcircumstances , more than sufficient for the Prosecutor to complete h is work with1 Reques t , para . 3 .1 Requ est, p ara . 16.2 0 Request, paras . 17 and 18.21 Reques t , para . 272 2 Request, paras . 4, 22 and 28-30.

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respect to evidence that has been in his domain for a protracted period of time,nam ely betw een 14 and 5 mon ths as this evidence wa s collected since 31 March 2010until 15 Decem ber 2010. Furthe rm ore, in relation to the asserted potential availabilityof protective measures that fall short of redaction, the Single Judge observes that, incase of changes of circumstances that make redactions previously authorized nolonger necessary or proportionate, such redactions can be lifted by the Chamber onits own motion or upon requests of the parties.

18. In light of the above, the Single Judge is of the view that the arg um ents advan cedby the Prosecutor in his Request do not sufficiently show "good cause" within themeaning of regulation 35(2) of the Regulations for the sought extension of time limit.The Request m ust th us be rejected in its entirety.

FOR THESE REA SON S, THE SINGLE JUD GE HEREBY

REJECTS the Request.

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

Judge Ekaterina t rendaf lovaSingle JudgT

Dated this Tuesday, 10 May 2011At The Hag ue, The Ne therlands

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Documents

ICC Decision on the Prosecutions Application for Extension of Time Limit for Disclosure