decision on defence application for a permanent stay of the proceedings due to abuse of process

8/13/2019 Decision on Defence Application for a Permanent Stay of the Proceedings Due to Abuse of Process

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Original: English No.:ICC-01/09-02/11Date:5 Decem ber 2013

TRIAL CHAMBER V(B)

Before: Judg e Ku niko Oza ki, Presid ing Judg eJudge Robert FremrJudge Chile Eboe-Osuji

SITUATION IN THE REPUBLIC OF KENYAIN THE CASE OF

T PROSEC UTOR v. UHUR U MU IGA I KENYATTA

Public redacted versionDecision on Defence application for a permanent stay of the proceedings due toabuse of process

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Decision to be notified, in accordance with Regulation31of the R egulations of the Cou rt, to:Th e Office of the Prosecu tor Cou nsel for U hu ru M uig ai Ken yat taMs Fatou BensoudaMr James StewartMr Benjamin Gumpert

Mr Steven KayMs Gill ian Higgins

Legal Representat ives for Vict imsMr Fergal GaynorUnrepresented Vic t ims

Legal Representat ives of Appl icants

Unrepresented Appl icant sPar t i c ipa t ion/Repara t ion for

Th e Office of Pu blic Co un sel for T he Office of Pu blic Co un sel for theVict ims DefenceMs Paolina M assidda

States Representat ives Amicus Curiae

REGISTRYRegistrarMr Herm an von Hebe l Deputy Regis t ra r

Vict ims and Witnesses Uni tMr Patrick Craig Detent ion Sec t ion

Vict ims Part ic ipat ion and Rep arat ion s Oth ersSect ion

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Trial Chamber V(B) ( 'Chamber') of the Intemational Criminal Court ( 'Court ') , in the caseof The Prosecutor v Uhuru Muigai Kenyatta, having regard to Articles 54(1), 54(3)(d), 64(2)and 67(l)(b), 67(l)(e) and 70 of the Rome Statute ('Statute'), Regulation 24(5) of theRegulations of the Court ( 'Regulations ') and Articles 8, 29 and 34 of the Code ofProfessional Conduct for counsel ( 'Code of Conduct ') , issues the following Decision onDefence application for a permanent stay of the proceedings due to abuse of process.

I . Proc edu ral his tory

1. On 30 Au gust 2013, the Cham ber issued a schedul ing order and agend a for astatus conference to be held on 6 September 2013. The part ies andparticip ants w ere instruc ted to notify th e Cham ber, by 3 Septem ber 2013, ofany issues the y m ay w ish to raise at the status conference.^

2. On 3 Septem ber 2013, the defence team for M r Ken yatta ('Defence') sent anemail listing, inter alia, the following issue as one the Defence 'wishe[d] toraise ' at the status conference as part of agenda item D (Other matters):^

B.Adjournm ent of Trial Date as a Result of the Following Ma tters[TO BE ADDRESSED IN CLO SED SESSION]3. OTP witnesses ' conspiracy to interfere with Defence witnesses and theprogressio n of Defence investigations - Article 70 subm ission.4. OTP witnesses' fabrication of evidence given to OTP - Article 70Submission.5. With respect to points (3) and (4) above, the need for Defence witnesses toreceive VWU protection before these issues can be adv ance d.

3. O n 6 Sep tem ber 2013, the Defence filed a confiden tial ex parte 'Re qu est for anUrgent Hearing for Disclosure of Materials to the Trial Chamber ConcemingInterference with Defence Witnesses and Fabrication of Evidence by

^Scheduling Order and Agenda for Status Conference CScheduling Order'), ICC-01/09-02/11-799.^Scheduling Order, ICC-01/09-02/11-799, para. 3.^E-mail communication from the Defence to the Chamber, Prosecution and Legal Representative on 3 September 2013at 20:20. The Defen ce's email was initially sent to the Chamber only on 3 September 201 3 at 16:26. It was re-sent to theProsecution and Legal Representative upon the direction of the Chamber, issued by email on 3 September 2013 at 18:11.N o.ICC-01/09-02/11 3/40 5 D ec em be r 2013

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Prosecu tion W itnesses '.^ Later that day, an ex parte hea ring wa s held at wh ichthe Defence indicated, inter alia, an intention to file an abuse of processmo tion in this case.^ The Defence stated that th is could n ot be disclosed to theOffice of the Prosecutor ( 'Prosecution') until certain individuals were ' in aplace of safety' .^ The Chamber was informed that the Defence were l iaisingwith th e Victims and W itnesses Un it ( 'VW U') in that regard.^

4. On 13 Septem ber 2013, the Ch am ber directed the VW U to inform theChamber and the Defence as soon as interim protection measures, ifapplicable, were implemented for the relevant witnesses and directed theDefence to file any ab use of proce ss motion n ot later than o ne da y after i t hadbeen so notified by the VWU.^ The VWU agreed to provide the Defence with48 ho ur s notice prior to the imp lem enta tion of the interim m easures.^

5. O n 10 Oc tober 2013, th e Defence filed the 'Defence Ap plica tion for aPer ma nen t Stay of the Proceed ings d ue to Ab use of Process ' ( 'Application') .^^

6. On 11 October 2013, following a direction by the Ch amb er,^the VWUnotified the Chamber that i t had not yet completed implementation ofprotective measures for the relevant witnesses and, consequently, had not

^ ICC-01/09-02/11-801-Conf-Exp. A corrigendum was filed on 19 September 2013, ICC-01/09-02/11-801-Conf-Exp-Corr and ICC-01/09-02/11-801-Conf-Exp-Corr-AnxA. These documents were reclassified as 'confidential', available toall parties and participants pursuant to Trial Chamber V(b)'s Decision on Prosecution request for reclassification, 17October 201 3, ICC-01/09-02/11-828-Conf. See also e-mail com munication from Legal O fficer of the Chamber on 16October 2013 at 15:36.^Transcript of hearing on 6 September 2013, ICC-01/09-02/1 l-T-25-Conf-EXP-ENG, page 3, lines 17-20, page 5, lines21-25 and page 8, lines 22-24. The transcript was reclassified as 'confidential' (ICC-01/09-02/1 l-T-25-Conf-ENG-ET)pursuant to Trial Chamber V( b)'s D ecision on Prosecution request for reclassification, 17 October 20 13, ICC-01 /09-02/11-828-Conf.See also e-mail co mm unication from Legal Officer of the Cham ber on 16 October 2013 at 15:36.^Transcript of hearing on 6 September, ICC-01/09-02/1 l-T-25-Conf-ENG-ET, page 3, lines 7-9; page 4, lines 15-16;page 4, line 24 to page 5, line 1and page 9, lines 16-19.ÎCC-01/09-02/1 l-T-25-Conf-EN G-ET , page 7, line 20 to page 8, line 16.Ê-mail from Legal Officer of the Chamber o n 13 September 201 3 at 13:34.Ê-mail from VW U on 30 September 2013 at 17:55.^ Confidential version of the Defence Application for a Permanent Stay of the Proceedings due to Abuse of Process,ICC-01/09-02/11-822-Conf, with 87 confidential annexes A .l to A.12 and B.l to B.8; Public redacted version of theDefence Application for a Permanent Stay oftheProceedings due to Abuse of Process, ICC-01/09-02/11-822-Red.^ E-mail from Legal Officer of the Chamber on 11October 2013 at 14:15.N o .ICC-01/09-02/11 4/40 5 De cem be r 2013

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notified the Defence of implementation of the protective measures.[REDACTED].i2

7. On 17 Octobe r 2013, following a requ est from the Prosecution^^ and hav ingconsidered submissions from the Defence ^ and VWU, ^ the Cham berreclassified on e tran scri pt a nd five filings rela ting to the Application^^ as'confidential ', available to all parties and participants.^^

8. On 29 October 2013, the Legal Rep resentative for Victims ( LRV ) respondedto the Application ('LRV Response').^^

9. On 31 Octobe r 2013, the Ch am ber adjourn ed the dat e of the com men cem entof trial from 12 November 2013 to 5 February 2014 because, inter alia, bothpart ies were in agreement that the Prosecut ion needed addi t ional t ime toinvestigate the factual allegations raised in the Application ( 'AdjourrmientDecision').^^

10. On 1 No vem ber 2013, the Prosecut ion respon ded to the App l ication('Prosecution Response').-^

^ VWU's report on the implementation of interim measures for Defence Witnesses, ICC-01/09-02/11-825-Conf-Exp.This document was reclassified as 'confidential', available to all parties and participants, pursuant to Trial ChamberV(b )'s Decision on Prosecution request for reclassification, 17 October 2013 , ICC-01/09-02/11-828-C onf See also e-mail communication from Legal Officer of the Chamber on 16 October 2013 at 15:36; ICC-01/09-02/11-828-Conf.^ Prosecution request for reclassification, 11 October 2013, ICC-01/09-02/11-824-Conf.^ Response to the "Prosecution Re quest for Reclassification", 15 October2013, ICC-01/09-02/11-826-Conf.^ E-mails from VWU to Trial Chamber V(b) Communications on 15 October 2013 at 15:20 and 16 October 2013 at11:09.^ ICC-01/09-02/1 l-T-25-Conf-EX P-ENG ; ICC-01/09-02/11-801-Conf-Exp-Co rr and ICC-01/09-02/11-801-Conf-Exp-Con-AnxA; ICC-01/09-02/11-808-Conf-Exp; ICC-01/09-02/11-811-Conf-Exp; ICC-01/09-02/11-825-Conf-Exp.^ Decision on Prosecution request for reclassification, ICC-01/09-02/11-828-Conf'^ Victims' Response to "Defence Application for a Permanent Stay of the Proceedings due to Abuse of Process", ICC-01/09-02/11-840-Conf; Public Redacted version of the "Victims' Response to "Defence Application for a PermanentStay of the Proceedings due to Abuse of Process" notified on 30 October 2013, ICC-01/09-02/11-840-Red.'^ Decision adjourning the commencement of trial, ICC-01/09-02/11-847.ICC-01/09-02/11-848-Conf, with two confidential armexes A and B; Public redacted version of the Prosecutio n's 1November 2013 opposition to the Defence application for a permanent stay of proceedings, 5 November 2013, ICC-

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11 . On 14 No vem ber 2013, the Defence m ad e a reque st to the Cham ber to fileadditional submissions ( 'Additional Submissions Request ') .^

12. On 20 No vem ber 2013, the Prosecut ion respond ed to the Ad di t ionalSubmissions Request , submitt ing that i t should be rejected and that theCham ber should rule on the Appl icat ion with out delay.^

II . Appl icable l aw13 . The Chamber notes that the Appl icat ion requests the Chamber to

perm anen t ly s tay the proceedin gs^ and m akes no al ternat ive request for aconditional stay of proceedings. As such, the Chamber will only set out thelaw applicable to a request for a permanent stay of proceedings.

14. The Cham ber recalls that , in i ts prev ious com posit ion as Trial Ch am ber V, i tconsidered the law applicable to a request for a stay of the proceedings.^^Relying on this Court ' s previo us jur isprudence, the fo l lowing principles w ereidentified:

(i) the jurisprudence of this Court has consistently confirmed theavailabili ty of a stay of proceedings where i t would be repugnant orodious to the administration of justice to allow the case to continue.

* Public redacted version of Defence observations on the Prosecution's further investigations resulting from theDefence application for a Permanent Stay of Proceedings Due to Abuse of Process, ICC-01/09-02/11-856-Red;Confidential version of Defence observations on the Prosecution's further investigations resulting from the Defenceapplication for a Permanent Stay of Proceedings Due to Abuse of Process, ICC-01/09-02/11-856-Conf.^Pr ose cuti on response to the public redacted version of the Defence's 14 November 2013 "ob servations" (ICC-01/09-02/11-856-Red), 20 Novem ber2013, ICC-01/09-02/11-859.^ Application, ICC-01/09-02/11-822-Red, para. 89.^ Decision on defence application pursuant to Article 64(4) and related requests ('64 (4) D ecisi on'), 26 April 2013,ICC-01/09-02/11-728. See also Separate opinion of Judge Ozaki, 26 April 2013, ICC-01/09-02/11-728-Anxl;Concurring Opinion of Judge Christine Van den Wyngaert, 26 April 2013, ICC-01/09-02/1 l-728-Anx2 and ConcurringSeparate Opinion ofJudgeEboe-Osuji, 2 May 2013, ICC-01/09-02/1 l-728-Anx3-Corr2-Red.N o.ICC-01/09-02/11 6/40 5 D ec em be r 2013

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durin g t r ial preparat ion 'wo uld run contrary to the responsibi li ty oftrial jud ge s to relieve imfa ime ss as pa rt of the trial process'.^^

15 . This Ch am ber sees no need to dep art from any of these principles w he nanalysing the present Application.

III . Pre l iminary I s sue16. As a prelim inary issue, the Cham ber note s that , in the A dditio nal

Submissions Request , the Defence requests the Chamber to: (i) permit theDefence to provide further submissions at a date to be determined in thefuture, following the conclusion of the investigations referenced in theAdjournment Decision and within a reasonable t ime before thecom men cem ent of trial an d (ii) awa it the outco me of those investigations an dthe submission of further observations by the parties before ruling on theApplication.^^

17. The Cham ber notes that the Defence does no t pres ent any legal basis for i tsAdditional Submissions Request , which seems to be an attempt to reply tothe Prosecution Response. However, Regulation 24(5) of the Regulations ofthe Court provides that leave must be granted before such submiss ions canbe made .^ The Cha mber considers that no addi t ional submiss ions arenecessary in the present case, as it has sufficient information to render itsdecision. In particular, the conclusion of the investigations at issue in theAdjournment Decision is not a prerequisite to ruling on the Application.

^^64(4) Decision, ICC-01/09-02/11-728, para. 78, citing to Trial Chamber IV, The Prosecutor v. Abdallah BandaAbakaer Nourain and Saleh Mohammed Jerbo Jamus, Decision on the defence request for a temporary stay ofproceedings, 26 October 2012, ICC-02/05-03/09-410, para. 79.Additional Submissions Request, ICC-01/09-02/11-856-Red, para. 14.* 'Participants m ay only reply to a response with the leave of the C hamber, unless otherwise provided in theseRegulations'.N o.ICC-01/09-02/11 8/40 5 D ec em be r 2013

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Accordingly, the relief sought in the Additional Submissions Request isrejected in full.

IV. Analys isA. Overa l l Sub miss ion s18. In the Ap plication, the Defence requ ests a pe rm an en t stay of the proc eedin gs

for an abuse of process.^In the alternative, th e Defence requ ests theChamber to hold an evidentiary hearing entail ing the call ing of l ive evidenceto 'deter min e this issue conclusively prior to th e com me ncem ent of trial '.^^

19. In the Prosec ution Respo nse, the Prose cution subm its that the Applica tioncomes 'nowhere near ' the threshold for a stay of proceedings and that i tshould be rejected in fuU.^

20. In the LRV Respon se, the LRV subm its that the relief soug ht by the D efencesho uld be denied,^^ argu ing that: (i) the Applica tion is m ad e in the co ntext of'a mul t i - faceted campaign by the Accused, supported by his Govemment , toavoid trial ';^^ (ii) a permanent stay of the proceedings due to abuse of processis to be used in very exceptional circumstances, and is 'an unsuitable remedyfor dealing with offences against the administration of justice';^^ (iii) 'tools areavailable within the trial process ' to deal fairly with the matters raised in theAppl icat ion;3 (iv) repea tedly l i t igating th e credibil i ty of key Prosec utionwitnesses before trial has even begun is 'neither appropriate nor necessary';^^

^' Application, ICC-01/09-02/11-822-Red, paras 1-2.^ Application, ICC-01/09-02/11-822-Red, para. 2.^ Prosecution Response, ICC-01/09-02/11-848-Red, paras 1and 132.^ LRV Response, ICC-01/09-02/11-840-Red, para. 49.^ LRV Response, ICC-01/09-02/11-840-Red, paras 7-9.^ LRV Response, ICC-01/09-02/11-840-Red, paras 10-17.^ LRV Response, ICC-01/09-02/11-840- Red, paras 23-32.^ LRV Response, ICC-01/09-02/11-840- Red, paras 33-37.N o . ICC-01/09-02/11 9/40 5 D ece mb er 2013

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(v) ' the trial is the pro per fo rum ' in which to test Prosecution eviden ce and topresent evidence in support of the Accused^^ and (vi) the Defence should notbe rew ard ed for 'em plo ying y et another delayin g tactic '.^^

21. The Cham ber will proc eed to analyse the specific allegations mad e in theApplication in the sub-sections below. For each allegation, the Chamber willsummarise the submiss ions and support ing mater ia ls presented by theparties prior to making i ts assessment. After determining how much weight,if any, to give to each of the Defence's allegations, the Ch am ber will then givean overall assessment on the totali ty of the Application to determine whetherthe thresho ld for a stay of proc eedin gs has been reached.

B. W itness 118 an d a Prosecu t ion interm edia ry1, Allegation that the evidence of ten Prosecution witnesses has been irremediably

tainted by the actions of Witness 118 and a Prosecution intermediaryI Relevant Submissions

22. The Defence indicates that W itness 118 and a Prosecu tion in term edia ry( 'Intermediary') were responsible for bringing ten trial witnesses to theProsecution . ^ The Defence then argu es that Witness 118 a nd theIntermediary formed part of a 'conspiracy to provide fabricated evidence tothe Prosecution'.^^ The Defence alleges that Witness 118 has constructed thisplan to 'sabotage the Defence case' by suggesting that witnesses providedifferent evidence to the Court to that which they were intended to provide.^

^ LRV Response, ICC-01/09-02/11-840- Red, paras 38-42.^ LRV Response, ICC-01/09-02/11-840- Red, paras 43-46.^' Application, ICC-01/09-02/11-822-Red, para. 5 (Witnesses 217 ,21 9,4 28, 4 29 ,43 0,4 93 ,49 4, 5 05, 506 and 510).^ Application, ICC-01/09-02/11-822-Red, para. 32.^ Application, ICC-01/09-02/11-822-Red, para. 74.N o.ICC-01/09-02/11 10/40 5 D ec em be r 2013

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Statute '.^^ Ho we ver, the Prosecu tion argu es that an y action un de r A rticle 70of the Statute can be conducted in parallel with the trial and need notdisplace i t .^

27 . The Prosecu tion also argu es that the Defence's credibil ity challenges 'do no tjustify a stay - they show why a trial is necessary' .^The Prosecu tionemphasises that credibil i ty and ' intermediary taint ' can only be reliablyassessed at trial after a complete presentation of the evidence and that theAppl icat ion requests the Chamber to 'bypass this process and to conduct apremature credibil i ty assessment on the basis of an incomplete snapshot ofthe eviden ce, edited b y on e of the parties '.^^ The Prosecu tion em pha sises thatthe trial process will enable the Chamber to fashion remedies, such asexpunging the relevant evidence from the trial record or not relying upon it ,to compensate for any unfairness established by the evidence.^^

ii. Supporting materials28. The Defence pu rp or ts to substan tiate the alleged conspiracy to prov ide

fabricated evidence by providing [REDACTED] and witness s ta tementswhich are submitted to demonstrate, inter alia, that: (i) Witness 118 coached[REDACTED] for both the Prosecution and the Defence as to what they weresupposed to say when describing the post-election violence, asking them inpar ticula r to say th at the y [REDACTED], ^ (ii) W itness 118 w as seeking to

^ Prosecution Response, ICC-01/09-02/11-848-Red, para 3. See also Application, ICC-01/09-02/11-822-Red, paras 76-77 .Article 70 oftheStatute govems '[ojffences against the administration of justice'.^' Prosecution Response, ICC-01/09-02/11-848-Red, para. 3.^ Prosecution Response, ICC-01/09-02/11-848-Red, para 5. See also Prosecution Response, ICC-01/09-02/11-848-Red,para. 74.^ Prosecution Response, ICC-01/09-02/11-848-Red, paras 6 and 102.^ Prosecution Response, ICC-01/09-02/11-848-Red, paras 74, 79 and 103-04.^ See Annex A.2 of the Application, ICC-01/09-02/11-822-Conf-AnxA.2 ([REDA CTE D]).^ Annex A.l.i of the Application, ICC-01/09-02/11-822-Conf-AnxA.l.i, pages 13-18; Annex A.l.ii of the Application,ICC-01/09-02/11-822-Conf-AnxA.l.ii, pages 5-7; Annex A.l.iv of the Application, ICC-01/09-02/11-822-ConfAnxA.l.iv, pages 8, 11-16, 19 and 29; Annex A.l.v of the Application, ICC-01/09-02/11-822-Conf-Anx A. l.v, page 7.N o .ICC-01/09-02/11 12/40 5 D ec em be r 2013

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incrim inate M r Keny atta a nd w itness es testifying in his defence^^ an d (iii)Witness 118 sought financial gain from participating in the case andpromised that others would likewise benefit from testifying.^^

29 . The Defence relies on portion s of i ts sup po rting m aterials to arg ue th atWitnesses 12,^2505,^^42 8,^ 430^^ ^nd 429^ m ay ha ve be en inv olv ed in thealleged conspiracy.

30 . The Defence also directs the Cham ber to the Prose cution 's screenin g note s often of the Prosecution's witnesses to prove [REDACTED] was in attendanceduring these interviews, that [REDACTED] pressured at least one of them toagree to speak w ith the Prosecution and [REDACTED] briefed at least one ofthem prior to the screening.^^

31. The Defence further relies on supp ortin g materials to argue that theIntermediary [REDACTED] and w as assist ing witne sses to be on the side ofthe Prosecution.^^ The Defence also pro vid es a series of rep or ts from analleged forensic linguistics expert,^^ w h o ultim ately con clud es that: (i) there

Annex A.l.i oftheApplication, ICC-01/09-02/11-822-Conf-AnxA. l.i, pages 12-13;Annex A .l.iii of the Application,ICC-01 /09-02/11-822-C onf-Anx A.l.iii, pages 5-6; Annex A.l.i v of the Application, ICC-01/09-02/11-822-Conf-AnxA.l.iv, pa ges 19 and 23.^ Annex A.l.ii of the Application, ICC-01/09-02/11-822-Conf-AnxA.1.ii, pages 3-4; Annex A.l.iii of the Application,ICC-01/09-02/11-822-Conf-AnxA. 1.iii, page 4; Annex A.l.iv of the Application, ICC-01/09-02/11-822-Conf-AnxA.l.iv, pages 26-28; Annex A.l.v of the Application, ICC-01/09-02/11-822-Conf-AnxA. l.v, pages 8-9.^ Annex A.1 .iof the Application,ICC-01/09-02/11-822-Conf-AnxA.1.i,page 8; Annex A.1.iv of the Application, ICC-01/09-02/1 1-822-Conf-AnxA.l.iv, pages 8 and 16.^ Annex A.l.i of the Application, ICC-01/09-02/11-822-Conf-Anx A. l.i, pages 9 and 16.^' Annex A.l.i of the Application, ICC-01/09-02/11-822-Conf-Anx A. l.i, page 16.^ Annex A.l.i oftheApplication, ICC-01/09-02/11-822-Conf-AnxA. l.i, page 21.^ Annex A.l.i oftheApplication, ICC-01/09-02/11-822-Conf-AnxA.l.i,page 21.^"^Application, ICC-01/09-02/11-822-Red, para. 79. The Chamber notes that it does not have access to all of thesescreening notes in ecourt, but, for purposes of the reasoning below, the Chamber will proceed on the basis that thescreening notes say what the Defence purports them to say.^ Annex A.l oftheApplication, ICC-01/09-02/11-822-Conf-AnxA. 1, paras 86-96.^ Annex A.8 of the Application, ICC-01/09-02/11-822-Conf-AnxA.8, paras 18-22; Annex A.9 of the Application, ICC-01/09-02/1 1-822-Conf-AnxA.9.^ Annex A.IO of the A pplication, ICC-01/09-02/11-822-Con f-AnxA.lO.i, ICC-01/09-02/11-822-Conf-AnxA.lO.ii,ICC-01/09-02/11-822-Conf-AnxA. lO.iii, ICC-01/09-02/11-822-Conf-AnxA. lO.iv, ICC-01/09-02/11-822-Conf-AnxA.lO.v, ICC-01/09-02/11-822-Conf-AnxA.10.vi , ICC-01/09-02/11-822-Conf-AnxA. 10.vii.K0478, ICC-01 /09-N o.ICC-01/09-02/11 13/40 5 D ec em be r 2013

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are signs of 'com mo n authorship'^^ beh ind at least some of the contents ofw ritte n state me nts of Witnesse s 428, 429, 430, an d 217^2 an d (ii) tha t this o the rauthor is the Intermediary.^^

32 . As reg ard s the allegations that the aforemen tioned statem ents of Prosecu tionwitnesses demo nstrate a 'com mo n au thorsh ip ' such that they reveal a plan toconcoct false evidence , the Prosecution resp on ds that: (i) i t is inap pro pria te toassume that the defence expert is reliable without giving the Prosecution anop po rtu nit y to ch allenge th e expe rt 's evidence ,^' (ii) stylistic similarities ins ta tements t ranscribed by the same person are 'unsurpris ing and do not , bythemse lves, de mo nstr ate falsity'^^ and, (iii) accordin g to the me thod olog yemployed by the Defence expert , the Defence witness statements annexed tothe Application would also tend to indicate 'common authorship' .^^

iii. Assessment of this allegation33 . The Ch am ber notes that the Prosecution doe s not contest that W itness 118

and the Intermediary connected the Prosecution with at least ten of i ts trialwi tnesses .^ The issue to be resolved is wh eth er Witness 118 and theIntermediary improperly influenced the Prosecution's witnesses; if so, to

02/11-822-Conf-AnxA. lO.vii. A, ICC-01/09-02/11-822-Conf-AnxA.lO.vii.B, ICC-01/09-02/11-822-Conf-AnxA.10.vii. Kl, ICC-01/09-02/1 l-822-Conf-Anx A.10.vii.K2, ICC-01/09-02/11-822-Conf-AnxA.10.vii.K0080 (12documents in total).^ The Chamber understands that this term is synonymous with 'shared authorship' in the various reports, and the latterterm is defined as referring to three possible authorship scenarios, namely: (i) the documents were produced by twoauthors collaborating with each other, (ii) the author of one document had access to a document which, however, hadbeen produced by another author and (iii) the two documents were produced by the same author. Annex A.lO.vi. of theApplication, ICC-01/09-02/11-822-Conf-AnxA.lO.vi, paras 16-19.^ Annex A.lO.vi of the Application, ICC-01/09-02/11-822-Conf-AnxA. 10.vi.^ Annex A.lO.vi of the Application, ICC-01/09-02/11-822-Conf-AnxA. 10.vi, para. 163.^' Prosecution Response, ICC-01/09-02/11-848-Red, para. 97.^ Prosecution Response, ICC-01/09-02/11-848-Red, para. 98.^ Prosecution Response, ICC-01/09-02/11-848-Red, paras 99-100.^ Application, ICC-01/09-02/11-822-Red, para. 5; Prosecution Response, ICC-01/09-02/11-848-Red, para. 11.N o.ICC-01/09-02/11 14/40 5 D ec em be r 2013

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wh at extent such inf luence should be considered wh en rul ing up on a requestto stay the proceedings.

34. The Cha mbe r does note wi th concern the sup port in g mater ia ls which tend tosupport the complaint that Witness 118 may have coached cer ta inProsecution witnesses and sought financial gain for participating in the case.Also, the Chamber is not at this t ime in a posit ion to preclude the possibil i tythat Witness 118 and/or other Prosecution witnesses agreed to fabricateevidence. However , the Chamber considers that what the Defence seeks toes tabl ish by this a l legat ion would be more appropria te ly addressed in thecourse of the t r ia l or proceedings commenced by the Prosecut ion underArticle 70 of the Statute. In this regard, the Chamber notes that theProsecution is undertaking an investigation for offences under Article 70 ofthe Sta tute re lated to this case. ^ As correctly no ted b y the P rosec ution , an ysuch Article 70 proceedings may run concurrently with the trial .

35. The Ch am ber emp hasises that i t is entirely una cceptab le for any pe rso n toinappropria te ly manipulate the tes t imony of the Court ' s wi tnesses . Suchbehaviour will render the affected testimony unreliable or inadmissible.Further, corruptly influencing the Court 's witnesses consti tutes an offenceagainst the adm inistratio n of justice an d is punis hab le u nd er Article 70(1 )(c)of the Statute.79

36. How ever, the support ing mater ia ls prov ided by the Defence, even if they areaccepted as true, do not, as far as the Chamber is now able to see, reveal aconspiracy of the scale alleged in the App lication.

^ Prosecution Response, ICC-01/09-02/11-848-Red, para 77.^^ 'The Court shall have jurisdiction over the following offences against its administration of justice when committedintentionally: [...] (c) [c]orruptly influencing a witness, obstructing or interfering with the attendance or testimony of awitness, retaliating against a witness for giving testimony or destroying, tampering with or interfering witii thecollection of ev idence'.N o . ICC-01/09-02/11 15/40 5 D ec em be r 2013

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37 . The sup po rtin g materials do tend to sugg est that Witness 118 w as tell ing[REDACTED] to incriminate Mr Kenyatta and [REDACTED]. But this onlysuggests a conspiracy to fabricate evidence if these witnesses wereencouraged to provide accounts of events different from what, to theirknowledge, actually happened.^

38 . The re is , as far as the Cha mb er is no w able to see, l i tt le sup po rt in themater ia ls provided which es tabl ishes that the Prosecut ion witnessesidentified at paragraph 29 above are expected to give false testimony. TheDefence puts a great deal of emphasis on [REDACTED]i [REDACTED]describing what they heard second-hand [REDACTED]. Several of theProsecution witnesses who are associated with Witness 118 and theIntermed iary are not me nt ioned in the Defence 's su ppo rt ing m ater ia ls a t al l.And, as far as the Chamber is now able to see, it is only inferences fromassociation that would taint their evidence to the extent claimed by theDefence.

39 . Ultimately, the Cham ber is not persu ad ed that it is app rop riate or safe toevaluate the truth or falsi ty of the testimony of the named Prosecutionwitnesses on the basis of the supporting materials , or pre-trial submissions,alone. The Chamber does not accept that these are issues that can be assessedin isolation from the evidence as a whole. These assert ions go to the ult imateissues to be resolved at trial , and the Chamber does not consider i tapp rop riate or safe to attem pt to resolve them at this stage.

40 . As to the Intermediary, the Cham ber considers that the argum ents on theinvolvement of the Intermediary also appear to be premised on inferences

^ The suppo rting materials to the Application conflict in this regard. Con trast, fo r example, Application, ICC-01/09-02/11-822-Conf-AnxA. l.iv, page 29 [REDACTED] with page 18, [REDAC TED].^ Annex A.l.i ofthe Application, ICC-01/09-02/11-822-Conf-AnxA.l.i.N o . ICC-01/09-02/11 16/40 5 D ec em be r 2013

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based on association. The Defence's own supporting materials suggest thatthe Intermediary [REDACTED].^^A S to the reports of the proposed forensiclinguist , even if the allegations of common authorship were accepted as true,the Chamber does not consider that common authorship necessari lyprecludes the truth of the contents of the statements. As noted by theProsecution, where the same individual transcribes statements from anumber of witnesses, stylistic similarities may arise. It will be a matter forcross-examination at trial , to see whether the similarit ies were natural or inbad faith.

2. Allegation of Witness 118 and the Intermediary preventing effective Defenceinvestigation

i. Relevant Subm issions41. The Defence subm its that the cond uct of Witness 118 an d the Interme diary,

and person s act ing on theirbehalf,ha ve [REDACTED].^^ The Defence allegesthat Witness 118 and the Intermediary, both directly and indirectly' intimidated and interfered' with [REDACTED] to 's top the cooperation ofthese witnesses with the Defence, and to secure a change of testimony in l inewith the Prosecut ion 's case , in re tu m for rew ard ' .^

42 . The Defence further su bm its that the cond uct of Witness 118 an d theIntermediary has ' interfered significantly and irreparably with the abili ty ofthe Defence to conduct investigations ' and has prevented the Defence fromobtain ing witn ess coope ration. ^ The D efence alleges that the con duc t of

^ Annex A.1 of tiie Application, ICC-01/09-02/11-822-Conf-AnxA.l, paras 76, 85 and 87.^ Application, ICC-01/09-02/11-822-Conf, para. 6. See also Application, ICC-01/09-02/11-822-Conf, para. 77.^' Application, ICC-01/09-02/11-822-Conf, para. 30. See also Application, ICC-01/09-02/11-822-Conf, para. 77.^ Application, ICC-01/09-02/11-822-Red, paras 6 and 83.N o .ICC-01/09-02/11 17/40 5 D ec em be r 2013

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W itness 118 w as 'd esig ne d to sen d a me ssage [REDACTED].^^ It is claimedthat the evidence reveals ' involvement of the entire [REDACTED] in theconspiracy to prevent the Defence from having a fair trial '.^^

43 . The Defence sub mits that [REDACTED] repre sent ' the only typ e of sourc e' i tcould use to challenge the [REDACTED] relied on by the Prosecution.^^ It isargued that the conduct of Witness 118 and the Intermediary has 'preventedthe Defence from obtaining witnesses to the truth and thereby significantlyaffected their ability to ensure the fairness of any subsequent trial '. TheDefence claims that providing protection to Defence witnesses cannot'remedy the damage caused to the trial ' which goes to the 'viabili ty ofDefence investigations'.^^

44 . The Prosecution states that i t 'view s all serious allegations of witne ssinterference with the utmost concern' , including the allegation that Witness118 ' intimidated and interfered' with potential Defence witnesses.^^ As notedabove, the Prosecution states i t has irtiated an investigation relating tooffences u nd er A rticle 70 of the Statute.^^ Ho w ev er, th e Prosec utio n arg ue sthat, even if the allegations regarding Witness 118 are established to beaccurate, 'such misconduct on the part of a witness does not merit the"dr astic r em ed y" of a stay of the Accu sed's case'.^^

^ Application, ICC-01/09-02/11-822-Conf, para. 30. See also Ap plication, ICC-01/09-02/11-822-Conf, paras 73-74.^ Application, ICC-01/09-02/11-822-Red, para. 73.^ Application, ICC-01/09-02/11-822-Red, para. 83.^ Application, ICC-01/09-02/11-822-Red, para. 83.^ Prosecution Response, ICC-01/09-02/11-848-Red, paras 76-77.^ Prosecution Response, ICC-01/09-02/11-848-Red, para. 77.^ Prosecution Response, ICC-01/09-02/11-848-Red, para.78.N o .ICC-01/09-02/11 18/40 5 D ec em be r 2013

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45. The Prosecut ion submits that the Defence has not demo nstrated 'anymisconduct with respect to Defence witnesses ' on the part of theIntermediary.^^

46. The Prosecution arg ues that the Defence allegation that Witne ss 118[REDACTED] is unsupported other than by the 'speculation of Defenceinve stigators ' and one witn ess.^ 'It further subm its that [REDACTED].^^ TheProsecution argues that i t is 'unjustified to order a stay at this stage' as theDefence [REDACTED]. 6In assert ing that [REDACTED] the Prosec utionrelies upon the jurisprudence of Trial Chamber IV in The Prosecutor v.Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus where, itclaims, the situation was 'more compelling' , as i t was argued in that case thatall actual and potential witnesses were closed to defence investigation fromthe outset.97

47 . The Prosecu tion addit ionally contests the Defence assert ion [REDACTED]and states that the Defence has 'unfettered access to a wide array' ofalternative potential sources of evidence.^^

//. Supporting materials48. In substan tiation of this allegation the Defence relies on the statem ents of two

members of the defence team at Annexes A.ll and A.12 of the Applicationwh ich, inter alia, recou nt [REDACTED].^^ It is no ted tha t th e [REDACTED ]

^Prosecution Response, ICC-01/09-02/11-848-Red, paras 91-92 and 95.3 J^' Prosecution Respo nse, ICC-01/09-02/11-848-Conf, paras 83-85.^ Prosecution Respon se, ICC-01/09-02/11-848-Conf, para. 86.^^Prosecution Respon se, ICC-01/09-02/11-848-Conf, para. 87. See also Prosecution Response, ICC-01/09-02 /11-848-Conf,para. 89.^ Prosecution Response, ICC-01/09-02/11-848-Conf, paras 88-90.^ Prosecution Response, ICC-01/09-02/11-848-Red, paras 87 and 90.^ Application, ICC-01/09-02/11-822-Red, para. 84.N o .ICC-01/09-02/11 19/40 5 D ec em b er 2013

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an d the statem ents at Anne xes A .l , A.4, an d A.6-A.8 of the Application are ofadd itional relevance to this allegation.

49 . The Prosecut ion subm its that Annex es A .l l an d A.12 of the Appl icat ionprovide ' l i t t le more than [Defence team] opinions ' as to why [REDACTED]are 'non-cooperative' , that 'opinions are not facts ' and that , in this case, theiropinions are not the 'only reasonable explanation for the refusal of persons tospeak w ith the Defence' .^^

50 . The Prosec ution prov ides, at An nex A of the Prosec ution Respo nse, astatement from a Prosecution investigations team leader which, inter alia,provides a detailed chronological account of Prosecution interactions withthe Interm ediary , Witness 118 [REDACTED].

iii. Assessment of this allegation51. O n the basis of the material currently before i t, the Cha mb er finds the

Defence allegations that the Intermediary was involved in witnessintimidation, or engaged in conduct which has ' interfered sigrficantly andirreparably' with the Defence's abil i ty to conduct investigations, to beunsubstant ia ted. None of the mater ia l submit ted provides di rect support forsuch allegations. By contrast, it is noted, for example, that [REDACTED].^^^This information is consistent [REDACTED]^ an d pr ov ide s no basis forbelieving that the Intermediary was aware of any intimidation or interferencewhich the witnesses may have been subjected to by Witness 118 or othersacting on his behalf. Consequent ly, the Chamber wi l l consider only the

^^ Prosecution Response, ICC-01/09-02/11-848-Red, para. 84.* Annex A l of tiie Application, ICC-01/09-02/11-822-Conf-Anx A. l, para. 89.^ Prosecution Response, ICC-01/09-02/11-848-Conf, para. 93 .N o.ICC-01/09-02/11 20/40 5 D ec em be r 2013

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alleged conduct of Witness 118, or persons working on his behalf, in respectof this allegation.

52 . The Cha mbe r is concerned that the supp ort ing mater ia ls tend to show tha tWitness 118, and others acting on this witness 'behalf, may have engaged inefforts to intimida te Defence witn esses.

53 . Ho we ver, it is no ted that bo th parties ap pea r to ha ve experienc ed difficultiesin obtaining evidence from [REDACTED], and to serious security concernson th e pa rt of the p otential witnesses.^^^ Ho we ver , the C ham ber considersthat such difficulties fall within the scope of investigative difficulties that arenot unheard of in the context of large-scale investigations into serious ororganised cr ime. The s ta tutory framework provid es means of address ing andmitigating the impact of such factors, including through prosecution ofperpetrators under Article 70 of the Statute, as mentioned above, andthrough seeking appropria te protect ion measures for the wi tnessesconcerned through the VWU. At this s tage, the Chamber is not convincedthat the difficulties facing the Defence are of a nature which cannot beaddre ssed t hro ug h such m eans . Nor are they beyon d the remed ial abil it ies ofthe trial process, including appropriate reflection in the outcome of the caseat the end of the trial.

54 . The Ch am ber notes that , [REDACTED]. Ad ditionally, as is evid ent fromAn nex A.12 of the Ap plication, th e Defence [REDACTED], ^^[REDACTED].io5

^ Application, ICC-01/09-02/11-822-R ed, paras 6, 83-84 and Annexes A .l l and A.12; Prosecution Response, ICC-01/09-02/11-848-Red, paras 12-13.^^ [REDACTED] see e.g. Application, ICC-01/09-02/1 l-822-Conf-Anx.A.12, paras 50, 60, 61,67 and 69.^ See, e.g., Annex A.12 of tiie Application, ICC-01/09-02/1 l-822-Conf-Anx.A.12, [RED ACT ED].N o.ICC-01/09-02/11 21/40 5 D ec em be r 2013

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57 . The Defence alleges that Witnesses 11 an d 12 - in collaboration with oth ers -were involved in a conspiracy to 'extort money in return for favourableevidence ' .

58. The Defence states that these activit ies we re condu cted for the pu rpo se, interalia, of 'interfer ing w ith the Ac cu sed 's rig ht to a fair trial'.^^^ It claims tha tthere is also evidence of intent to carry out a 'plan to enrich themselves ' withthe purpose being to relocate Witness 12's entire extended family.^^Ît isfur ther submit ted that the conspiracy was conducted without the knowledgeof M r Kenyatta.î^

59 . The Defence alleges that Witness 11 wa s involv ed in the conspiracy to'ta m pe r w ith t he collection of evidence'.^^^ It is alleged th at [REDACTED]acted as an intermediary between Witness 11 and Witness 12 in relation tothis conspiracy.î^

60 . The Defence argue s that the condu ct of W itnesses 11 an d 12 'furthercompounds the seriousness and scale of the abuse of process on the currentproceedings'.^^'

61. The Prosecu tion sub mits that the 'credibil i ty challeng es ' wh ich the Defencehas raised in respect of Witness 11 and Witness 12 do not warrant a stay and'can b e reso lved only th ro ug h a full airing of the ev iden ce at trial'.^^^ It isargued that the Defence allegations do not 'present the full picture ' to the

^ Âpplication, ICC-01/09-02/11-822-Red, para. 8^ Application, ICC-01/09-02/11-822-Red, para. 8no Application, ICC-01/09-02/11-822-Red, para. 66.^Âpplication, ICC-01/09-02/11-822-Red, paras 63, 67 and 72.^ ^ Application, ICC-01/09-02/11-822-Red, para. 69. See also Application, ICC-01/09-02/11-822-Red, paras 8, 70 and85.^ Âpplication, ICC-01/09-02/11-822-Conf, paras 8 and 69.^ 'Application, ICC-01/09-02/11-822-Red, para. 85.^ ^ Prosecution Response, ICC-01/09-02/11-848-Red, para. 105. See also Prosecution Response, ICC-01/09-02/11-848-Red, paras 112-113 and 121-24.N o .ICC-01/09-02/11 23/40 5 Dec emb er 2013

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Chamber and rely on 'selectively edited snippets of evidence' .^ TheProsecut ion addi t ional ly submits that the 'open and t ransparent ' act ions ofWitness 11 and Witness 12 in contacting the VWU and Prosecution to informthem of a t temp ts to 'contact and bribe ' them, and the subsequen t agreem enton the part of Witness 12 to having his telephone conversations recorded bythe Prosecution, are not consistent with a 'desire to solicit or receive bribes 'as alle ge d b y t he Defence.^^^

62 . The Prosecu tion addition ally submits that the Defence subm issions relylargely on arguments that were previously ra ised both a t the confi rmat ionstage and before this Chamber.^^^

119ii. Supporting materials63 . In substan tiation of the allegation, the Defence relies up on ex tracts from 48

audio recordings of telephone conversations, [REDACTED], between,amongst others. Witness 12, [REDACTED], OTP 'handlers ' [REDACTED]( 2012Au di o Recordings').^2o j particular, the Defence cites to conversationsbetween Witness 12 and [REDACTED] where the amount of money to seekand the purpose for which the money wil l be used is discussed. ^ TheChamber addit ionally notes that Witness 11 appears to be referred to in anu m be r of the 2012 Au dio Recordings.^^

^ ^Prosecution Response, ICC-01/09-02/11-848-Red, para. 106.^ ^ Prosecution Response, ICC-01/09-02/11-848-Red, para. 118. See also Prosecution Response, ICC-01/09-02/11-848-Red, paras 50-56."^ Prosecution Response, ICC-01/09-02/11-848-Red, para. 105.* ^In the Application, the Defence makes no submission to md icate that it is relying on the imsigned draft statements atAnnexes A.5.i-iv for anything other than that they are [REDACTED].^ Application, ICC-01/09-02/11-822-Conf, section IV, B, paras 63-67.^ ^Application, ICC-01/09-02/11-822-Conf, paras 63-66.* ^See, e.g.. A nnexes B.2.iv- B.2.vi, B.2.xii, B.2.xiv, B.2.xviii and B.2.xxiii of the Application.N o.ICC-01/09-02/11 24/40 5 De cem ber 2013

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74 . In relation to the letter at An nex B.8 of the Application,^^^ the Ch am ber no testhat i t refers to a domestic investigation arising from certain 'al legatio ns ' . TheChamber does not consider that this let ter is specific enough to substantiatethe allegations of a conspiracy to interfere with the collection of evidence.

75 . Finally, the Cham ber doe s no t find i t necessary to consider whe the r or notM r Ken yatta w as aw are of the alleged conspiracy^^^ for the purp os es of thepresent determinat ion.

2. Allegation tha t Witness 12 interfered with the collection of evidence by the Defencei. Relevant Submissions

76. In the App lication, the Defence submits that W itness 12 interfered with th ecollection of evidence by the Defence by 'providing the Defence with aninit ial exculpatory account and then giving a false incriminating account tothe Prosecution'.1^^ The Defence in dicate s that it exp osed this 'pl an ' at th econfirmation hearing and thereafter.^^^ The Defence submits that Witness 12has demonstrated a 'dear wi l l ingness to change tes t imony in the event ofalleged agreements not being reached and money not being sent ' . i '^

77. The Prosecution responds that Witness 12's provision of a largelyexcu lpatory stateme nt does no t s up po rt the gran t of a stay. ' TheProsecution submits that this statement goes to the witness ' credibil i ty,w hic h is to be a ssessed at trial.^ '

^ ^The Chamber notes a slight unexplained variation in the name ofoneoftheindividuals mentioned in the letter.^ ^See Application, ICC-01/09-02/11-822-Red, para.67; Prosecution Response, ICC-01/09-02/11-848-Red, para. 117.^ ^Application, ICC-01/09-02/11-822-Red, para. 68 (footnotes omitted).^ ^Application, ICC-01/09-02/11-822-Red, para. 68.^' Application, ICC-01/09-02/11-822-Red, para. 68.^'^ Prosecution Response, ICC-01/09-02/11-848-Red, paras 107-111.^'^ProsecutionRespo nse, ICC-01/09-02/11-848-Red, para. 107.N o.ICC-01/09-02/11 28/40 5 D ec em b er 2013

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ii. Supp orting materials78 . The Defence cites to Witness 12's prev iou s statem ents in the case as proof

that Witness 12's account changed from an exculpatory one into anincriminat ing one.^ The Defence also ma ke s reference to Witness 12'sstatements in the 2012 Audio Recordings which allegedly demonstrate thatWitness 12 changed his statements because the Defence failed to make anagreement and send him money.^ ' '

iii. Assessment of this allegation79. As stated above w he n discussing the alleged conspiracy of Witnesses 11 and

12, the Chamber has already considered the unsuccessful alleged extortionattempt for the withdrawal of evidence or the provision of favourableevidence. For the purposes of this section, the Chamber will only focus onwhether any weight should be attributed to the specific allegation that thealleged changes in Witness 12's testimony affected the Defence's 'collectionof evid ence ' .

80 . Even if the Defence's l ine of reasoning w as assu me d to be correct, theChamber fails to see how these changes in Witness 12's account haveimpaired the Defence's abil i ty to investigate. An attempt by a witness tochange their account for personal gain does not, without more, impact theDefence's abil i ty to collect evidence or investigate the case more generally.Any concerns that Witness 12's account changed as part of seeking financialgain can be de alt with in the course of the trial process.

143 Application, ICC-01/09-02/11-822-Red, para. 68, footnotes 219-220.^"Application, ICC-01/09-02/11-822-Red, para. 68, citing to Annex B.2.xxxvi of the Application, Annex ICC-01/09-02/11-822-Conf-AnxB.2.xxxvi, page 6; Annex B.2.xxxvii of tiie Application, ICC-01/09-02/11-822-Conf-AnxB.2.xxxvii, pages 10-11 and 16.N o.ICC-01/09-02/11 29/40 5 D ec em be r 2013

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81. If this Defence allegation is un de rsto od m ore bro adly to refer to ho w W itness12's changed account may have misdirected the Defence's investigation, theChamber is not persuaded that any such concerns would hold meri t . TheDefence has bee n on n otice of the alleged cha nges in Witness 12's account forsome time,^'^ and has had sufficient opportunity to adapt i ts investigation tothis knowledge.

82 . For the foregoing reason s, the Cham ber declines to give any weigh t to thisspecific allegation in its final assessment as to whether to grant a stay ofproceedings .

D . A llega tion of Pro sec utio n's failure to exercise du e dil ige nce ove r i ts casei. Relevant Submissions

83 . The Defence claims that the Prosecution is 'pre sidi ng over an utterly corru ptan d d ishon est case'.^'^ The Defence subm its that th e Prosecution ha s failed inits Article 54 duties to investigate incriminating and exoneratingcircumstances equally and to investigate the ' t ruthfulness of i ts witnessesan d interm edia ries ' . ' The Defence asserts th at i t has pro vid ed theProsecution with evidence of the lack of reliabil i ty of Prosecutionwitnesses.^'^

84 . The Defence argu es that the ten witnesses introdu ced to the Prosecu tion byWitness 118 and the Intermediary have all been added after the confirmation

^' The Defence was aware of the changes in Witnesses 11 and 12's statements at the confirmation hea ring, and attackedthe credibility of both on this point before tiie Pre-Trial Chamber. See Decision on the Confirmation of ChargesPursuant to Article 61(7)(a) and (b) of tiie Rome Statute, 23 January 2012, ICC-01/09-02/11-382-Red, para. 93. The2012 Audio Recordings were disclosed, at tiie latest, by 11 February 2013. See Application, ICC-01/09-02/11-822-Red,paras 18-20.^'^ Application, ICC-01/09-02/11-822-Red, para. 72.^' Application, ICC-01/09-02/11-822-R ed, para. 86.^' Application, ICC-01/09-02/11-822-R ed, paras 72, 81 and 86.N o.ICC-01/09-02/11 30/40 5 Dec emb er 2013

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of charges stage and that the ' lack of scrutiny of this recent evidence has ledto and obs cure d a perv ersio n of justice'.^'^ It is claimed tha t the P rose cutio nhas failed to 'exercise due dil igence in i ts use of intermediaries ' by usingWitness 118 and the Intermediary, who - i t is alleged - each have ' their owncauses to serve'.^^^ The D efence claims th at th e ev iden ce reve als a 'lack ofprosecutoria l wisdom' which is ' shocking when compared to the normalstandards of criminal justice'.^^^

85. In relation to the alleged conspiracy of W itness 11 and W itness 12, asdiscussed above, the Defence alleges that their interference was conducted' through channels provided by the Prosecut ion ' .^ The Defence furtheralleges that the Prosecution has 'been misled or deliberately tried to evadethe truth as to the activity' of Witness 12. ^Ît is argu ed that Witness 12's'clear will ingness ' to change testimony for reward is an offence requiringinvestigation under Article 70 of the Statute, but that the Prosecution hasbeen 'unwill ing to recognise ' this as i t has 'an interest in maintaining thecredibili ty of its witness ' .^^ The Defence su bm its that ' the Prosec ution iswilfully blind to these issues or, even worse, constructing a case deliberatelyin de fiance of its Article 54 duties'.^^^

86 . The Defence addit ionally sub mits that the use by the Prosecution of'Agreements on Statement of Limited Use' has contributed to a perception onthe part of Prosecution witnesses that they are immune from prosecution.

^' Application, ICC-01/09-02/11-822-Red, para. 80.^ Application, ICC-01/09-02/11-822-Red, para. 81.^* Application, ICC-01/09-02/11-822-Red, para. 81.^ Âpplication, ICC-01/09-02/11-822-Red, para. 8.^Âpplication, ICC-01/09-02/11-822-Red, para. 23.^^' Application, ICC-01/09-02/11-822-Red, para. 68.^Âpplication, ICC-01/09-02/11-822-Red, para. 68. See also Application, ICC-01/09-02/11-822-Red, paras 22 and 86.N o.ICC-01/09-02/11 31/40 5 D ec em be r 2013

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The Defence claims that consequently '[t]he plain pressure on the witness isto agree to a Prosecution v ersion of facts'. ^

87 . As prev iously reco unte d above , the Prosecu tion states that it 'view s allserious allegations of witness interference with the utmost concern' and, inlight of the material pertaining to Witness 118 as provided to i t in theApplication, has init iated an investigation to determine whether there is'sufficient objective informa tion' to indicate that Witness 118 ha s c omm ittedoffences under Article 70 of the Statute. The Prosecution states that Witness118 'did not act and is not acting under Prosecution control ' .^ TheProsecut ion submits that no misconduct on the part of the Intermediary hasbe en esta blis he d. ^

88. The Prosec ution additionally contests the Defence interpre tation of even tsrelating to Witness 11 and Witness 12. The Prosecution explains that thedelay in disclosing transcriptions and translations of the 2012 AudioRecordings^^^ is at tributab le to th e 'qua li ty control ' proc ess em ploy ed and a' t ime-consuming voice recognition process ' , as well as the need to undertakeaddi t ional 'qual i ty control ' when i t became apparent that there were'significant' differences between the Prosecution and Defence translations.^^^

ii. Suppo rting materials89 . The Defence cites to An nex B.3 of the Application an d certain disclosure

notifications to support i ts argument that i t notified the Prosecution ofma tters po tentially im pacting the reliabili ty of certain of i ts witnesse s.

^ ^Application, ICC-01/09-02/11-822-Red, para. 76.^ ^ Prosecution Response, ICC-01/09-02/11-848-Red, para. 77.^ ^ Prosecution Response, ICC-01/09-02/11-848-Red, paras 91-95.^ ^Supra, para. 64.^ ^ Prosecution Response, ICC-01/09-02/11-848-Red, paras 64-65.N o.ICC-01/09-02/11 32/40 5 Dec emb er 2013

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90 . In su pp or t of the allegations reg ard ing the Prosecu tion reliance on Witness11 and Witness 12, the Defence provides in Annexes B.3-B.5 of theAp plication copies of relevant inter partes co rrespo nde nce.

iii. Assessm ent of this allegation91. The Cham ber again notes that the Prosecut ion is current ly un dertak ing

investigations regarding the alleged conduct of Witness 118. The Chamberdoes not consider the fact that Witness 118 and the Intermediary may havepersonal motivations for cooperating with a particular party to the l i t igationis sufficient in itself to render them unreliable. Rather, it is a factor to beconsidered when evaluat ing their evidence and that of o ther wi tnesses whomay be subject to their influence.

92. Similarly, in resp ect of the allegations reg ard in g the credibility of certainother wi tnesses - including that they may hav e provid ed va rying accounts tothe Prosecution and the Defence - the Chamber notes that the obligations onthe Prosecution are to investigate exonerating circumstances and to discloseevidence w hich, inter alia, tend s to show the innocen ce of the accused or 'ma yaffect th e credibility of pros ecu tion evidence'.^^^ This do es no t prec lud e theProsecut ion from cont inuing to re ly upon evidence which, notwiths tandingthe existence of material which may affect its credibility, it believes to besufficiently reliable to put before the Chamber. The Chamber does notconsider i t necessary a t this stage to resolve the reason s wh y differingaccounts may hav e been provid ed to the part ies .

93. In respect of the allegations relating to W itness 11 and W itness 12, theChamber refers to i ts analysis above. The Defence submissions in this regard

*^Articles 54(l)(a) and 67(2) of tiie Statute.N o .ICC-01/09-02/11 33/40 5 Dec emb er 2013

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appear to re ly on a speculat ive presumption that the Prosecut ion wasimaware of or misled as to the content of the 2012 Audio Recordings. TheChamber notes that from the transcripts i t appears that [REDACTED], andtherefore does not consider i t reasonable to conclude that the Prosecutionwas unaware of the contents of these recordings. The Chamber recalls that i thas previously indicated to the Prosecution that i t is under an obligation topr ep ar e an d disclose tran slatio ns of the 2012 A ud io Recordings^^^ an d findsthat there has been an unjustified delay in doing so.^ How ever , theChamber does not consider that a delay in disclosure of the translations issufficient to support a conclusion that the Prosecution was ignorant of theircontents.

94 . The Cham ber considers unp ersuas ive the Defence submiss ion regarding theuse of statem ents of l imited use . It is ap pa ren t from the transcrip t relied up onby the Defence that witnesses are clearly and explicit ly told that theirobligation is to tell the truth and that fail ing to do so would render theagre em ent on l imited u se void.^^ Co ntrary to the Defence subm issions, theChamber f inds that the 'pla in pressure ' on the wi tness from such anagreement is not to 'agree to a Prosecution version of facts ' , but rather to tellthe t ruth.

95 . Finally, the Chamber notes that the Prosecution did not object topostponement of the commencement of the trial on the groimd that certain of

^ ^Public redacted version of 'Decision on com mencement date of trial', 20 June 2 013, ICC-01/09-02/11-763-Red, para.36.^ ^ See Prosecution Respo nse, ICC -01/09-02/11-848-Red, para. 6 5, which indicates that the first d isclosure of tiietranslations took place on 25 October2013,only after the filing of tiie Application.^^ Transcript of interview, KEN-OTP-0091-1594, page 1597 (for example see '[i]f the Prosecutor discovers that youhave not been truthful in giving the statement of limited use or have withheld important information then the Prosecutoris no longer bound by this agreement and can use the statement of limited [use] against you in any way').N o .ICC-01/09-02/11 34/40 5 De cem ber 2013

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Intermediary preventing effective Defence investigation ^ an d (iii) th eallegation that Witnesses 11 and 12 were involved in a conspiracy to tamperwith evidence or to interfere with the collection of evidence for the paymentof money.^^^ However, each of these allegations will only be accorded limitedweigh t, for the reasons explaine d in each of the analyses abov e.

99 . The Ch am ber recalls that a stay of proc eedin gs is an exceptional reme dy on lyto be granted as a last resort . The Chamber considers that a significantportion of the material relied upon by the Defence in the Application wouldmore appropria te ly be used during cross-examinat ion, ra ther than beingpresented p rem aturely as an at temp ted su bst i tute for the t r ia litself.

100. The Chamber a lso does not consider i t warranted to s tay the proceedingsbecause of the alleged difficult ies encountered in the Defence's trialpreparat ion , par t icular ly w he n those difficult ies h ave been ag gravated b y theDefence's own conduct. In this regard, the Chamber recalls i ts finding abovethat the Defence acted with serious disregard for the safety of i ts ownwitnesses [REDACTED]. The Chamber considers that this conduct riskedendangering these persons and consti tuted a violation of the Defence'sobligations to respect confidential information^^^ and not to expose witnessesto unnece ssary p ressu re outsid e the courtroom.^^^ The Cha mb er w arn s th atfuture violations in this regard may be referred to the Registry pursuant toArticle 34(l)(a) of the C ode of Co ndu ct.

^ ^Supra, paras 51-56.^ ^Supra, paras 70-75.^ ^ Article 8(1) of the Code of Cond uct. See also A nnex of D ecision on the pro tocol c oncem ing the handling ofconfidential information and contacts of a party with witnesses whom the opposing party intends to call, 24 August2012,ICC-01/09-02/11-469-Anx, paras 17 and 29-32.^ ^Article 29(1) of tiie Code of Conduct.N o.ICC-01/09-02/11 36/40 5 Dec emb er 2013

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103. O n the allegations to wh ich weig ht is given an d the totali ty of the sup po rtin gmateria ls before the Chamber, the Chamber is unpersuaded that i t would beodiou s or repug nan t to the adminis t ra t ion of jus tice to a l low the proceeding sto continue. The Chamber is l ikewise not persuaded that i t is impossible for afair trial to take place .

104. For these reasons, the Chamber rejects the Defence request to impose a stayof proceedings.

B. Ad di t iona l requ es t to ho ld an evident ia ry hear ing105. As an alternative to i ts request for a permanent stay of the proceedings, the

Defence requests the Chamber to hold an evident iary hearing to determinethe issue of abu se of process pr ior to th e co mm ence me nt of trial . ^ 'TheDefence contemplates that such a hearing would require the call ing of l ivewitnesses, including Witness 118, the Intermediary, Witness 11 and Witness12.175

106. The Prosecution responds that there is no basis to hold an evidentiaryhearing prior to trial . ^ The Prosecut ion argu es that an eviden t iary hearing isurmecessary because even if 'every allegation in the Application is acceptedas tru e [...] the y wo ul d be ina de qu ate to justify a stay'.^^^ The Pro secu tionsubmits that the Defence will be able to explore the issues raised in theApplication during the testimony of the relevant witnesses at trial and thatthe Defence request in this regard should be rejected.^^^

^ ' Application, ICC-01/09-02/11-822-Red , p aras 2 and 89(ii).^ ^Application, ICC-01/09-02/11-822-Red, para 2.^ Prosecution Response, ICC-01/09-02/11-848-Red, paras 7, 126 and 130.^ Prosecution Response, ICC-01/09-02/11-848-Red, para. 7. See also Prosecution Response, ICC-01/09-02/11-848-Red, para. 127.^ ^Prosecution Response, ICC-01/09-02/11-848-Red, paras 7 and 128-129.N o .ICC-01/09-02/11 38/40 5 De cem ber 2013

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107. The LRV responds that this alternative request should also be rejectedbecause a pre-trial evidentiary hearing is 'not envisaged in the Court 'sregulatory s t ructure , i s unnecessary, and migh t dissuade key witnesses fromtestif yin g at trial'. ^^

108. The Ch am be r recalls its findin g a bov e that it is poss ible for a fair trial to tak eplace and that there is insufficient justification to permanently stay theproceedings. The Chamber, having carefully assessed the Defence'sal legat ions and support ing mater ia ls , i s not persuaded that having anevidentiary hearing of the kind described by the Defence would materiallyimpact this determinat ion. In this regard, the Chamber notes the manyoccasions in the reason ing abo ve whe re, in cases of amb iguity, the Ch am ber 'sdeterminat ion was made assuming that the Defence 's a l legat ions and/orsupporting materials were true.^^

109. Accord ingly, in the present case, the Cham ber c onsiders that the issues raisedby the Defence oug ht not be separa ted from th e trial or adjudicated prior to itbut are more properly addressed during the course of the trial .

110. For these reasons, the Defence's request for a pre-trial evidentiary hearing todetermine the issue of abuse of process is also rejected.

FOR THE FOREGOING REASONS, THE CHAMBER HEREBYREJECTS the relief sought in the Additional Submissions Request; andREJECTS the relief so ugh t in the A pplication.

Judge Eboe-Osuji ap pen ds a concurr ing separate op inion.^ ^LRV Response, ICC-01/09-02/11-840- Red, paras 18-22.^ Supra, paras 36 ,40 , 71 , 80 and footnote 67.N o .ICC-01/09-02/11 39/40 5 De cem ber 2013

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decision on defence application for a permanent stay of the proceedings due to abuse of process

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