Order vacating Public trial date of 5 February 2014, convening a status conference, and addressing other procedural matters

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Original: English No.: ICC-01/09-02/11Date: 23 Janu ary 2014

TRIAL CHAMBER V(B)

Before: Judge Kuniko Ozaki , Presiding JudgeJudge Ro bert FremrJudge Chile Eboe-Osuji

SITUA TION IN THE REPUBLIC OF KENYA

IN THE CASE OFTHE PROSECUTO R v. U HURU M UIGA I KENYATTA

Order vacating

Public

trial date of 5 February 2014, conv ening a status conference, andaddressing other procedural m at ters

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Or der to be not i f ied, in accordance wi th reg ula t ion 31 of the Reg ula t io ns of the C ourt ,

to:

The Office of the ProsecutorMs Fatou BensoudaM r James Stew artMr Benjamin Gumpert

Counse l fo r Uhuru Muiga i Kenya t t aMr Steven Kay

Ms Gill ian Higgins

Legal Representa t ives of Vic t ims

M r Fergal Gaynor

Legal Representa t ives of Appl icants

Un represen ted Vic t ims Un represen ted Ap pl i can t s for

Par t ic ipa t ion/Repara t ion

The Office of Public Counsel for

Vic t ims

Ms Paol ina Massidda

Th e Office of Pu bl ic Cou nsel for theDefence

Sta tes Representa t ives Amicus Curiae

REGISTRY

Regist rarMr Herm an von Hebe l

Deputy Regi s t ra r

Vic t ims and W i tnesses Un i t

Mr Patrick Craig

Detent ion Sect ion

Vic t ims Pa r t i c ipa tion and Repara t ions Othe rs

Sect ion

M s Fiona M cKay

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Trial Chamber V(B) ( 'Chamber ') of the Intemational Criminal Court in the case of The

Prosecutor v. Uhuru Muigai Kenyatta, pursuant to Article 64(2) and (6) of the Rome Statute

('Statute'), Rules 132(1) and (2) of the Rules of Procedure and Evidence ('Rules') and

Regulations 23 bis, 24(1) and 34 of the Regulations of the Court ( 'Regulations'), issues the

following 'O rd er v acating trial date of 5 Feb ruary 2014, conv ening a status conference, an d

addressing other procedura l mat ters ' .

1. O n 31 Octob er 2013, the Ch am ber issued a decision prov isionally set t ing 5 Feb ruary

2014 as the date for the commencement of the trial.^

2. O n 19 De cem ber 2013, the Office of the Pro sec uto r ( 'Pro secu tion') filed a req ues t

('Prosecution Request ')^ seeking, inter alia, an adjournment of the provisional trial

date for three months in order to 'undertake addit ional investigative steps' in relat ion

to i ts case against Mr Kenyatta.^ The Prosecution also requested that a status

conference be convened to address the issues raised by the Prosecution Request and

in order for the Chamber to receive an update from the Prosecution on the addit ional

investigative steps being taken.^

3. O n 13 Ja nu ary 2014, the defence team for M r K eny atta ( 'Defence') filed a confiden tial

response ( 'Defence Response ' )^ request ing tha t the Chamber dismiss the Prosecut ion

request for adjournment and terminate the proceedings under Article 64(2) of the

Statute on the grounds of insufficiency of evidence.^

Decision adjourning the commencement of trial, ICC-01/09-02/11-847, page 5.^ Notification of the removal of a witness from the Prosecution's witness list and application for an adjournment of theprovisional trial date, ICC-01/09-02 /11-875.^ Prosecution Request, ICC -01/09-02/11-875, para. 3.^ Prosecution Request, ICC-01/09-02/11-875, paras 4,2 3 and 25.^ Defence Response to the Prosecution's Notification of the removal of a witness from the Prosecution's witness listand application for an adjournment of the provisional trial date , ICC-01/09-02/11-878-Conf.^ Defence Resp onse, ICC-01/09-02/11-878-Conf, paras 5, 38 and 39.

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4. O n the same day, the Co m m on Legal Rep resentat ive of Victims ('LRV') f iled a

response ( 'Victims' Response ') ,^ inter al ia , supporting the Prosecution Request and

seeking the Chamber 's leave to be present at any status conference convened in

relation to it.^

5. O n 15 Jan uary 2014, the Prose cution soug ht leave to reply to the Defence respon se

('Prosecution Request to Reply')^ on the basis, inter alia, of the nature of the issues

raised therein and the relief sought.^°

6. In ord er to give tho rou gh consideration to the requ ests pe nd ing before i t, and ha vin gdue regard to the consti tuent requirements of Article 64(2) of the Statute, the

Chamber considers i t appropriate to vacate the tr ial commencement date of 5

February 2014, without prejudice to the posit ion of the Chamber on the

aforement ioned pending requests .

7. Fur ther, to facil itate the fair and expedit ious condu ct of proce eding s, the Cha mb er

considers i t appropriate to convene a status conference, pursuant to Rule 132(2) of the

Rules, to discuss the issues raised by the part ies in relat ion to the Prosecution Req uest

and the Defence Response, to be held on Wednesday, 5 February 2014. Given the

significance of these issues and their potential impact on the interests of the vict ims,

the Chamber grants the request of the LRV contained in the Victims' Response to be

present at the status conference.

8. Ad dit ionally, given the ne w and dist inct issues of law raised by the Defence

Response and the nature of the rel ief requested therein, the Chamber finds that i t is

appropriate to treat i t as a new request to which the Prosecution is enti t led to fully

^ V ictims' response to Prosecu tion's application for an adjournment of the provisional trial date, ICC-01/09-02/11-879-Conf. A redacted version was filed concurrently (ICC-01/09-02/11-879-Red).^ Victims' Response, ICC-01/09-02/11-879-Red, paras 1,57 and 65.^ Prosecution request for leave to reply to the Defence's 13 January 2014 response to the Prosecution's adjournmentrequest, ICC -01/09-02/11-8 81 Conf.

*° Prosecution Request to Reply, ICC-01/09-02/11-881-Conf, para. 3.

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resp on d. Pu rsu an t to Regulations 24 (1) and 34 of the Regu lations, the Ch am ber sets a

dea dline for the Prosecu tion respo nse of Friday, 31 Janu ary 2014.

9. As a final ma tter, the Cham ber notes that the Defence Respo nse was fi led

confidentially, containing an undertaking therein to fi le a public redacted version in

due course . 1̂ The Chamber notes that this has yet to occur, and orders the Defence to

file a public reda cted version of i ts respo nse n o later than T uesd ay, 28 Janu ary 2014.

10. In this connection, the Cha mb er notes that the Prosecu tion indicated that the

Prosecution Request to Reply was fi led confidentially because i t addresses matters

raised in a fi ling so desig nated . ̂ ^ Accord ingly, th e C ham ber ord ers further that,

pu rsu an t to R egulation 23 bis of the Reg ulations, the Registry reclassify as public th e

Prosecution Request to Reply as soon as a public redacted version of the Defence

Respo nse has been filed.

FOR THE FOR EG OIN G RE ASO NS, THE CHAM BER HEREBY:

VAC ATE S the t ria l commencem ent d ate of We dnesd ay, 5 February 2014;

SCHEDULES a status conference for Wednesday, 5 February 2014;

GR AN TS th e reque st of the LRV to be presen t at the status conference;

ORDERS the Prosecution to fi le a response in relation to the new matters raised in the

Defence Resp onse n o later than F riday, 31 Janu ary 2014;

ORDERS the Defence to fi le a public redacted version of the Defence Response no later

than Tuesday, 28 January 2014; and

^̂ Defence Response, ICC-01/09-02/11-878-Conf, para. 2.^̂ Prosecution Request to Reply, ICC-01/09-02/11-881-Conf, para. 5.

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OR DE RS th e Registry to reclassify as pub lic the Prosecution Requ est to Reply (ICC-01/09-

02/11-881-Conf) as soon as a public redacted version of the Defence Response (ICC-01/09-

02/11-878-Conf) has been füed.

Judg e Eboe-Osuji ap pen ds a concurr ing separate opinion.

Done in both English and French, the English version being authoritative.

n L.Judge Kuniko Ozaki , P res id ing Judge

-ih

Judge Rîbbert Fremr

Dated 23 Janu ary 2014

At The Hague, The Netherlands

J udge C m j e Ïboe -O s u j i

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Documents

Order vacating Public trial date of 5 February 2014, convening a status conference, and addressing other procedural matters