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Original: English No.: ICC-01/09-01/11Date: 24 Se pte m ber 2013

TRIAL CHAMBER V(A)

Before: Judge Chile Eboe-Osuji, PresidingJudge Olga Herrera CarbucciaJudge Robert Fremr

SITUA TION IN THE REPUBLIC OF KENYAIN THE CASE OF

THE PROSECU TOR v. WILLIAM SAMOEI RUTO an d JOSHUA A RAP SANG

PublicDecision on Ruto Defence's Application for Leave to Appeal the 'Decision on

the Prosecution 's Request to Add Ne w W itnesses to its List of W itnesses '

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Decision to be notified, in accordance with Regulation 31 of the Regulation s of the Court, to:Th e Off ice of the Prosec utor Co uns el for W il l iam Sam oei Ru toMs Fatou Bensou da Mr Karim KhanMr James Stewart Mr David Ho operM r An ton Steynberg Mr Essa Faal

Ms Shyamala AlagendraCou nse l fo r Joshu a Arap SangMr Joseph Kipchumba Kigen-Katwa

Legal Representa t ives of Vic t imsMr Wilfred Nderi tu

Lega l Represen ta t ives of App l i can t s

U n r e p r e se n t e d V i c ti m s Unrepresen ted Appl i can t s fo rPa r t i c ipa t ion /Repara t ion

The Off ice of Publ ic Counsel forVic t imsMs Paol ina Massidda

The Off ice of Publ ic Counsel for theDefence

S ta te s Rep resen ta t ives Amicus Curiae

REGISTRYRegist rarMr Herman von Hebe l

Deputy Regi s t ra r

Vic t ims and W i tnesses Uni t De ten t ion Sec t ion

Vic t ims Pa r t i c ipa t ion and Repara t ions O the rsSect ion

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Tria l Chamber V(A) ( the 'Chamber ' ) o f the Internat ional Criminal Court ( the 'Court ' ) , inthe case of The Prosecutor v William Samoei Ruto and Joshua Arap Sang, having consideredArticle 82(l)(d) of the Rome Statute (the 'Statute ') , renders i ts Decision on Ruto Defence 'sAppl ica t ion for Leave to Appeal the 'Decision on the Prosecut ion 's Request to Add NewW itnesses to i ts List of Witne sses' .

L B A C K G R O U N D A N D S U B M I SS IO N S1. On 3 September 2013, the Chamb er i ssued the 'Decision on the Prosecut ion 's R equest

to Add New Witnesses to i ts List of Witnesses' ( the 'Impugned Decision') ,^ in which i tgranted two separate requests of the Office of the Prosecutor (the 'Prosecution') to adda person to the Prosecution's l ist of witnesses.

2. The next day, the defence team for Mr Ruto (the 'Ruto Defence ') fi led the 'DefenceApplicat ion for Leave to Appeal the "Decision on the Prosecution's Requests to AddNew Witnesses to i ts List of Witnesses" and Request for: (1) Adjounrment Followingthe Opening of Trial Proceedings and (2) Variat ion of t ime l imits pursuant toReg ulat ion 35 of the Regu lat ions of the Co urt ' ( the 'App licat ion') .^

3. Besides the applicat ion for leave to appeal , which will be dealt with in detail below,the Ruto Defence made two further requests in the Applicat ion. The second of theserequests, the request for variat ion of t ime l imits, became moot by the Chamber'sshortening of deadl ines for responses to the Appl ica t ion and order requir ing thepart ies to mak e their respon ses orally du ring the 9 Septem ber 2013 status conference.^

4CC-01/09-01/11-899.^ ICC-01/09-01/11-905-Conf.^ Order regarding Responses to the Ruto Defence Request for Leave to Appeal the "Decision on the Prosecution'sRequests to Add New Witnesses to its List of Witnesses" and related Requests, 5 September 2013, ICC-01/09-01/11-906.N o . ICC-01/09-01/11 3/17 24 Se pt em be r 2013

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4. On 9 September 2013, du r ing the s ta tus conference , the Cham ber i ssued an ora ldecision on the adjournment request included in the Applicat ion, reject ing i t .^ Duringthe aforement ioned sta tus conference , the Cham ber a lso announ ced that a decision onthe remaining rel ief requested in the Applicat ion, i .e . the applicat ion for leave toappeal, would be issued in due course.^ The current decision therefore only deals withthe appl ica t ion for leave to appeal the Ch am ber 's decision to authorise the Prosecut ionto add two persons to i ts witness l ist .The A pplication

5. In the Applicat ion, the Ruto Defence seeks leave to appeal the Impugned Decision inrelat ion to the following two issues:

(i) 'Wh ether the Tria l Cha mb er erred in authoris ing the addi t ion of the twowitnesses to the Prosecution's l ist of witnesses by fai l ing to assess whether:(a) any replacement for the evidence of former Witness 534 is required; and(b) the evidence of Witnesses P-604 and P-613 actually replaces the evidencethat would have been given by former Witness P-534' (the 'First Issue ');

(ii) 'W heth er the Trial Ch am ber erred in ho ldin g that defence invest iga tions intothe credibil i ty of witnesses "do not necessari ly need to take place prior to thecommencement of t rial" by not first considering whether the Defence has ar ight to undertake such invest iga t ions pr ior to the commencement of t r ia lpu rsu an t to Article 67(1 )(b) of the Ro me Statu te and if so, the circums tancesunder which this right may be abridged' (the 'Second Issue ') .^

6. The Ru to Defence subm its that bo th issues arise from the Imp ug ne d Decision.^ As tothe First Issue, i t submits that in granting the addit ion of P-604 and P-613 to the

^ Transcript of hearing on 9 September 2013, ICC-01/09-01/11-T-26-CONF-ENG ET, page 52, lines 17-25.^ ICC-01/09-01/11-T-26-CONF-ENG ET, page 5 0, lines 21-22.^ Application, ICC-01/09-01/11-905-Conf, para. 17.^ Application, ICC-01/09-01/11-905-Conf, paras 21-22.N o. ICC-01/09-01/11 4/17 24 Se pt em be r 2013

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Prosecution's witness l ist , the Chamber 'did not consider, nor state that i t needed toconsider [ . . .] whether (a) any replacement for the evidence of former Witness 534 isactually required vis--vis the Prosecution's core case; and (b) the evidence of witnessesP-604 and P-613 actually replaces the evidence that would have been given by formerW itness P-534'.^ It sub mits tha t ' [ t]he Cha m ber s imp ly accepted th at this w as the casewithout providing any explanat ion or reasoning thereof'.^ The Ruto Defence contendsthat i t submitted in i ts responses that no replacement evidence for Witness 534 wasnecessary and had pointed to the Pre-Trial Brief in this regard, and that i t hadsubmitted that the Prosecution has fai led to substantiate that the evidence expected tobe given by P-604 and P-613 could indeed be considered as a replacement of theeviden ce tha t Witness 534 ha d be en exp ected to give.^ Acc ording to the Ruto Defence,the First Issue is not merely a quest ion over which there is disagreement or aconflict ing opinion, but rather 'goes to the heart of the legal cri teria that a TrialChamber must evaluate when consider ing whether to a l low the addi t ion of wi tnessesto the Prosecution's List of Witnesses after the final disclosure deadline and whetherthe Tria l Chamber must provide i t s reasoning for each cr i te r ia regarding whether thereq uirem ent h as been met'.^^

7. As to the Second Issue, the Ruto Defence subm its tha t the Cha m ber incorrect lyinterpreted the right of the accused under Article 67(l)(b) of the Statute, when i t foundthat invest igations into the credibil i ty of the new witnesses do not necessari ly need totake place prior to the commencement of t rial , and that the call ing of the newwitnesses towards the end of the Prosecution's case would leave sufficient t ime tocarry out such invest iga t ions. ^ The Ruto Defence contends tha t carrying outinvest igations into the credibil i ty of a witness is 'a fundamental right that an accused

^ Application, ICC-01/09-01/11-905-Conf, para. 19 (emphasis in original).^ Application, ICC-01/09-01/11-905-Conf, para. 19.* Application, ICC-01/09-01/11-905-Conf, para. 20.* Application, ICC-01/09-01/11-905-Conf, para. 21.^ Application, ICC-01/09-01/11-905-Conf, para. 23 .No . ICC-01/09-01/11 5/17 24 Se pte m be r 2013

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person must be placed in a posit ion to exercise prior to the commencement of t rial [ . .]and w hich m ay on ly be imp inged up on in l imi ted c ircumstances '.^^

8. The Ru to Defence su bm its tha t the First an d Second Issues significantly affect the fairand expedi t ious conduct of proceedings, because they concern disc losure and therights of the accused pu rsu an t to A rticle 67(1 )(b) of the S tatute. It argu es th at if th eChamber 'wrongly decided the Fi rs t and Second Issues the impingement of Mr. Ruto 'sr ights may therefore be "undue" and accordingly the fa i rness of the proceedings maybe significantly affected' .^^Furthermore, i t argues that the Chamber's finding that theDefence will have sufficient t ime to carry out invest igations into these witnessesduring the proceedings, does not address the Defence 's inabi l i ty to incorpora te anyre levant informat ion ar is ing out of these invest iga t ions into the opening sta temen ts orput such information to the prosecution witnesses that wil l be called prior to theconclusion of the D efence 's investigations.^^ In addit io n, the R uto Defence aver s th atthe effect on the fairness of the proceedings will be compounded by future requests bythe Prosecut ion to replace o ther wi tnesses, which the Ruto Defence presumes theProsecution will file 'on the basis of the test set out ' by the Chamber.^^

9. The Ruto Defence a lso subm its tha t the expedi t iousness of proceedin gs ma y besignificantly affected, because if the Impugned Decision would be quashed, the'va luable t ime ' of the Cham ber , par t ies and par t ic ipants in the examinat ion a nd cross-examinat ion of these wi tnesses and the put t ing of addi t ional quest ions to o therwi tnesses, 'wi l l have been unnecessar i ly and improperly engaged ' . I t adds tha t anyrecall ing of witnesses required as a result of the Defence 's invest igations into P-604and P-613 not having been completed prior to the commencement of t rial , as well as

* Application, ICC-01/09-01/11-905-Conf, para. 23 .^ Application, ICC-01/09-01/11-905-Conf, paras 26-27 .^ Application, ICC-01/09-01/11-905-Conf, para. 28.* Application, ICC-Ol/09-Ol/l 1-905-Conf, para. 29.N o. ICC-01/09-01/11 6/17 24 Se pt em be r 2013

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the fur ther addi t ion of ' replacement wi tnesses ' , would fur ther impact on theexp edit iou snes s of the proceedings.^^

10 . The Ruto Defence contends tha t an immedia te reso lut ion of the two issues by theAppeals Chamber wi l l mater ia l ly advance the proceedings as the 'doubt over thecorrectness of the decision [...] casts a cloud over the entirety of the proceedings'.^^ Itfur ther submits tha t should the Chamber a l low the replacement of o ther wi tnessesfollowing future requests by the Prosecution to add new witnesses, there is a 'very realdanger ' that the Defence would face a case that is substantial ly different from the oneit was facing 'prior to the issuance of the Impugned Decision' , in which case 'doubts asto whether Mr. Ruto 's Art icle 67(l)(a) and (b) rights have been fully respected will beso deep as to erode all credibility in these proceedings'.^^

Responses to the Application

11 . The Prosecut ion responded ora l ly to the Appl ica t ion on 9 September 2013, opposingthe applicat ion for leave to appeal . I t averred that the First and Second Issues do notarise out of the Impugned Decision, and that these issues do not meet the cri teria setou t in Article 82(l)(d ) of the Statute.^^ It su bm itted tha t the First Issue is ba se d o n theflawed assumption that because the Chamber did not explici t ly state that i t assessedwhether a replacement of the evidence of former Witness 534 was necessary andwhether the evidence that would be provided by P-604 and P-613 in fact replaces i t ,does not mean that the Chamber did not consider whether this was the case .According to the Prosecution, the First Issue is based 'entirely on a misrepresentat ion

* Application, ICC-01/09-01/11-905-Conf, para. 31 .* Application, ICC-01/09-01/11-905-Conf, para. 33.* Application, ICC-01/09-01/11-905-Conf, para. 34.^ ICC-01/09-01/11-T-26-CONF-ENG ET, page 13, lines 1-3.N o . ICC-01/09-01/11 7/17 24 Se pt em be r 2013

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and misinterpretat ion' of the Impugned Decision and should be rejected for thisreason alone.^^

12. As to the Second Issue, the Prosecution submitted that i t is based on the incorrectassumpt ion tha t the Chamber did not consider whether the Defence has a r ight toundertake invest iga t ions into the credibi l i ty of wi tnesses pr ior to the commencementof tr ia l. I t po inte d to two para grap hs of the Imp ugn ed D ecision in which the Ch amb erdiscussed the right of the accused to have adequate t ime and facil i t ies for thepre pa rat io n of his defence, an d the pos sible prejudice to the D efence. ^ TheProsecut ion concluded th at 'wha t the Defence a t tempts to present as an issue a m oun tsto nothing more than a disagreement wi th the conclusions of the Chamber in thisregard' and that the Second Issue should therefore be rejected.^^

13 . The Prosecution added that the First and Second Issues do not significantly impact onthe fairness of the proceedings as the Chamber considered the potential prejudice andhas taken adequate measures to mi t iga te any pre judice tha t may be suffered by theDefence.^^ It further contended that the Ruto Defence speculates as to the possibility offurther witnesses being added, but that this does not affect the fairness of theIm pu gn ed Decision . ^ In addit ion, the Prosecu tion su bm itted th at the replacem ent ofwitnesses does not significantly affect the expedit ious conduct of the proceedings, oroutcome.^^

14. The defence team for Mr Sang (the 'Sang Defence ') expressed i ts support for theAppl ica t ion on 9 September 2013. I t a rgu ed that if the Cham ber analysed w hethe r the

^ lCC-01/09-01/1 l-T-26-CONF-ENGET, page 14, lines 13-15.^ ICC-01/09-01/11-T-26-CON F-ENG ET, pa gel 4, lines 20-25 ; page 15, lines 1-3.^ ICC-01/09-01/11-T-26-CON F-ENG ET, page 15, lines 4-10." ICC-Ol/09-Ol/l 1-T-26-CONF-ENG ET, page 15, line 11 and further; pag e 16, lines 1-4.^ ICC-01/09-01/11-T-26-CON F-ENG ET, page 16, line 14.^ ICC-01/09-01/11-T-26-CONF -ENG ET, page 16, lines 18-23.N o . ICC-01/09-01/11 8/17 24 Se pt em be r 2013

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new witness was a rea l replacement , this should be obvious and manifest f rom theIm pu gn ed Decision.^^ It further sub m itted tha t the replacem ent of witne sses affects thefairness of proceedings as i t is l ikely the quest ion will arise again and i t thereforewould welcome clarificat ion of the law on this matter.^

15 . The Sang Defence averred that i t wil l have to al locate t ime and resources intoinvest igating the new witnesses, which 'would affect the expedit ious trial on the partof the Defence'.29

16 . The Common Legal Representa t ive of Vic t ims responded to the Appl ica t ion on 9September 2013, subm it t ing tha t there is no req uireme nt for the Cham ber to expresslyma ke a de term inat ion as to the replacement of the evidence of one wi tness by another ,and tha t the Cham ber 's decision to grant the Prosecut ion 's requests necessar i ly impl iesthat i t considered tha t the new evidence wo uld replace tha t of the former v ^tness .^ I tfur ther submit ted tha t the Impugned Decision was in l ine wi th the fundamenta lpr inciple tha t a l lows the par t ies to decide on the wi tnesses an d eviden ce they wis h tocall.31

IL ANAL YSIS OF THE LEGAL FRAM EWO RK17 . Merely disput ing the correc tness of a Chamber 's reasoning does not const i tute

sufficient reaso n to be gr ante d leave to appe al an interlocu tory decision.^^ j h ^ pa rty^ ICC-01/09-01/11-T-26-CONF-ENG ET , page 20, lines 20-24.^ ICC-Ol/09-01/11-T-26-CONF-ENG ET, page 20, line 25; page 21 , lines 1-49 ICC-01/09-01/11-T-26-CONF-ENG ET , page 21, lines 5-8. ICC-01/09-01/11-T-26-CONF-ENG ET, page22, line 3 and further* ICC-01/09-01/11-T-26-CONF-ENG ET, page 22, lines 15-19.2 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's Application for ExtraordinaryReview of Pre-Trial Chamber Fs 31 March 2006 Decision Denying Leave to Appeal, 13 July 2006, ICC-01/04-168,para. 9, which states that *[o]nly an issue' may form the subject-matter of an appealable decision. An issue is anidentifiable subject or topic requiring a decision for its resolution, not merely a question over which there is adisagreement or conflicting opinion [...]'. The Appeals Chamber's reasoning in this regard is consistent with thejurisprudence of the ad hoc tribunals on this issue. See ICTY, Trial Chamber, Prosecutor v. Karadzic', Decision onAccused's Application for Certification to Appeal Denial of Motion for Judgement of Acquittal Under Rule 98 Bis, 18

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seeking leave to appea l mu st identify a specific ' issu e ' which ha s bee n dealt with in therelevant decision and which consti tutes the appealable subject . ^ The Appea l sChamber has held that such '[a]n issue is consti tuted by a subject the resolution ofwhich is essential for the determination of matters arising in the judicial cause underexam ination . The issue m ay b e legal or factual or a mixed one.'^^

18 . When examining the Applicat ion, in respect of the request for leave to appeal , theCh am ber ha s reg ard to the following cumulatives^ cri teria:

a) wh ether the mat ter is an 'appealab le i ssue ' ;b) whether going forward wi th the t r ia l on the basis of the Chamber 'sdetermination of the Issues as set out in the Impugned Decision would, if theAppeals Chamber were a t a la te r s tage to disagree wi th the Chamber 'sdetermination, significantly affect:

i . the fair and expedit ious conduct of the proceedings; orii . the ou tcom e of the trial; and

c) whe ther , in the opinion of the Cham ber , an imm edia te reso lut ion by the A ppealsChamber may mater ia l ly advance the proceedings.

July 2012, IT-95-5/18-T, para. 6 (further citations therein); ICTR, Trial Chamber III, Prosecutor v. Nzabonimana,Decision on Defence Motion for Leave to Appeal the Trial Chamber's Decision on the Defence Request to CallProsecution Investigators, 10 May 2011, ICTR-98-44D-T, para. 12 (further citations therein); ICTR, Trial Chamber II,Prosecutor v Bizimungu et al.. Decision on Casimir Bizimungu's Request for Certification to Appeal the Decision onCasimir Bizimungu's Motion in Reconsideration of the Trial Chamber's D ecision dated February 8, 2007, in Relation toCondition (B) Requested by the United States Government, 22 May 2007, ICTR-99-50-T, para. 7; ICTY, TrialChamber, Prosecutor v Slobodan Milosevic, Decision on Prosecution Motion for Certification of Trial ChamberDecision on Prosecution Mo tion for Voir Dire Proceeding, 20 June 2005 , IT-02-54-T, paras 3-5.^ ICC-01/04-168, para. 9.^ ICC-01/04-168, para. 9.s Pro secu tor v. Jea n-P ierr e Bemba G ombo, Decision on the prosecution and defence app lications for leave to appealthe "Decision on the admission into evidence of materials contained in the prosecution's list of evidence", 26 January2011, ICC-Ol/05-01/08-1169, para. 23; and Decision on the joint defence request for leave to appeal the decision onwitness preparation, 11 February 2013, ICC-Oi/09-01/11-596, paras 4-6.N o . ICC-01/09-01/11 10/17 24 Se pt em be r 2013

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19. The significance of this third cri terion requires underscoring. It makes the "opinion ofthe Chamber" about the efficiency of the appeal , in the part icular circumstances, theult imate factor in the granting of leave to appeal , regardless of the merits of the twoearlier criteria.

20 . As previously held by Trial Chamber III , i t is not sufficient for the purposes ofgranting leave to appeal that the issue for which leave to appeal is sought is of generalinterest or tha t i t m ay arise in future pre-trial or t rial proc eed ing s.^ Furth er, i t isinsufficient th at an app eal ma y be legit imate or even necess ary at some future stage, asopposed to requir ing immedia te reso lut ion by the Appeals Chamber in order tomater ia l ly ad vance the proceedings.^^ How ever , as he ld by the A ppea ls Cham ber , ' thePre-Trial or Trial Chamber is vested with power to state, or more accurately st i l l , tocertify the existence of an appealable issue. By the plain terms of article 82 (1) (d) of theStatute, a Pre-Trial or Trial Chamber may certify such a decision on its own accord'.^^In i t s de terminat ion whether leave to appeal should be granted, the Chamber i s thusnot l imi ted to the argum ents pu t forward b y the par ty seeking leave .

III . A N A L Y S I S O F T H E IS S U E S A N D CO N CL U S I O N21. The Chamber will f irst determine whether the matters the Defence seeks to appeal are

'appealable i ssues ' wi thin the meaning of the jur isprudence of the Court . The RutoDefence has formulated two issues for appeal . The Chamber considers that the FirstIssue is no more than a repeti t ion of the submissions made as part of the l i t igat ion thatpreceded the Impugned Decision. These submissions re la te to two quest ions, the

s^ICC-01/05-01/08-1169, para. 2 5. See also ICC-02/04-01/05-20-US-Exp, para. 2 1; Prosecutor v. Thomas LubangaDyilo, Decision on the Defence and Prosecution Requests for Leave to Appeal the Decision on Victims' Participation of18 January 2 008 ,26 February 2 008, ICC-01/04-01/06-1191, para. 11.^ ICC-01/05-01/08-1169, para. 25.^ ICC-01/04-168, para. 20.N o. ICC-01/09-01/11 11/17 24 Se pt em be r 2013

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answers to which, in the Ruto Defence 's view, should have guided the Chamber inanalysing the Prosecut ion 's requests .

22. The Ruto Defence contends that the framework of quest ions i t proposed consist of' legal cr i te r ia ' tha t 'must ' be evaluated by the Chamber 'when consider ing whether toallow the addit ion of witnesses to the Prosecution's List of Witnesses after the finaldisc losure deadl ine '.^^ Furtherm ore , the Ru to Defence avers tha t the C ham ber 'm ustprovide i t s reasoning for each cr i te r ia regarding whether the requirement has beenmet'.^o

23. As to the first quest ion that the Ruto Defence argues the Chamber fai led to assess, i tshou ld ha ve been c lear to the Ruto Defence tha t in gran t ing the Prosecu t ion 's requeststo be al lowed to replace the evidence init ial ly expected to be given by former Witness534, the Chamber acknowledged the re levance of the evidence for the Prosecut ion 'scase. Whether or not the Chamber was required to do so, is thus of no relevance. Assuch, the al leged failure to assess the first quest ion does not arise out of the ImpugnedDecision.

24. As to the second quest ion the Ruto Defence puts forward as ' legal cri terion' , the RutoDefence fai ls to recognise that the Chamber in the Impugned Decision considered theneed for addit ional invest igations regarding the subject matter of P-604 and P-613'santicipated test imonies ' in l ight of the part icular circumstances' of the requestedreplac em ent of former W itness 534 by P-604 an d P-613. ^ Fu rther mo re, the Prosec utionset out in i ts requests how P-604 and P-613's expected evidence would serve to replacethat of former W itness 534, and i t prov ided the Cham ber w i th the wi tness s ta tementsof both persons. The fact that the Defence i tself was not able to make such an

s Application, ICC-01/09-01/11-905-Conf, para. 21.^ Application, ICC-01/09-01/11-905-Conf, para. 21.* See Impugned Decision, ICC-01/09-01/11-899, para. 19.

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assessment , as much of the informat ion provided to the Chamber was redacted fromthe Defence, does not just ify the Ruto Defence 's assert ion that the Chamber did notconsider wheth er the expected evidence could indeed serve as a replacement ; nor d oesthe Chamber's decision not to make specific reference to parts of the expectedtest imony, of which significant port ions at the t ime were st i l l redacted from theDefence.

25. Moreover, in i ts responses, the Ruto Defence provided no reasoning, or any referencesto law or jur isprude nce , wh y the Cham ber wo uld be und er an obl igat ion to fo llow the'cri teria ' or ' requirements' put forward. Also in the Applicat ion, the Ruto Defence doesnot provide any legal basis why the Chamber should have considered the requestsa long the proposed framework. Without any reasoning why the Chamber erred, thisissue can be no reason to appeal the Impugned Decision. In fact , the al leged 'fai lure toassess ' the requests a long the proposed framework is no more than the Ruto Defenceme re disagreem ent w i th the Cham ber 's exercise of discre t ion.

26. In any event , considering that the Ruto Defence argument in this regard involvesconcerns about the possibil i ty of duplicat ion of Prosecution witnesses as to the facts towhich the concerned witnesses may test ify, the Defence misunderstands the legalsignificat ion of the Chamber's exercise of power to avoid possible duplicat ion in theanticipated test imonies of witnesses to be called in a case. The exercise of theChamber's power in that regard entails a discret ion on the part of the Chamber, forpurposes of efficient t rial management. I t entails no obligation on the Chamber as anincident of a right in the opposing party. Hence, no issue arises for appeal in thatrega rd .

27 . The aforementioned considerat ions make i t very clear that the Defence 's First Issuedoes not form an appealable issue.

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28. The Ruto Defence 's Second Issue is framed as an alleged failure by the Chamber toproperly consider the rights of the accused under Article 67(l)(b) of the Statute by notgranting the requested t ime for invest igations prior to the commencement of t rial . Inresponding to the Prosecut ion 's requests to add new wi tnesses, the Ruto Defenceargued that i t should be granted an adjournment of three months. The Chamberconsidered the request for adjournment and de termined that no adjournment wasnecessary as the Defence would have sufficient t ime during the Prosecution case, priorto the test imony of the new witnesses, to carry out addit ional invest igations, which theChamber considered to be ory of l imited nature. However, in set t ing out the SecondIssue, the Defence fai ls to acknowledge that the Chamber in the Impugned Decisiondid consider the rights of the accused under Article 67(l)(b) and set out why theChamber considered that the accused would have adequate t ime and facil i t ies for thepreparat ion of the defence and that therefore this right was not negatively affected bythe Chamber's decision to al low the addit ion of the two new witnesses.^^ T ^ ^ Ch a m b e rnotes that i t had exceptionally taken into account certain Prosecution ex partesubmissions and materials (classified ex parte for purposes of witness protect ion). Inthe circumstances, the Chamber had sat isfied i tself that the information revealed in theex parte submis sions and fil ings d o not reveal a need for extensive furtherinvest igations by the Defence, in l ight of disclosures already made in the case. TheCh am ber ord ere d th e Prosecution to notify th e ex parte inform ation to the Defence by 9September 2013, so tha t the Defence wo uld b e in a posi t ion to be t te r und ersta nd theChamber's decision.^^ At the time of filing the application for leave to appeal, the RutoDefence was thus not able to apprecia te the comple te Chamber 's reasoning, i t shouldbe able to do so now that i t has received th e ex parte versio ns of the req uests .

^ See Impugned Decision, ICC-01/09-01/11-899, paras 17-19.s Impugned Decision, ICC-01/09-01/11-899, p ara. 28.

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29. The Ruto Defence does not put forward any o ther arguments why the Second Issuearises from the Impugned Decision. What is more, the majori ty of the submissions onthe Second Issue mad e in the Appl ica t ion w ere in fac t no t previous ly m ad e dur ing theli t igat ion.

30 . Given the Chamber 's conclusion tha t the Fi rs t and Second Issues do not const i tuteappealable i ssues, the Chamber need not consider the cumulat ive second and thi rdcri teria for leave to appeal , but i t considers i t nevertheless relevant to make tofo llowing ob servat ions.

31. The Ruto Defence has stressed the 'unique circumstances of this case where thedefence will vigorously challenge the credibil i ty of and examine in-depth theconne ctions be twe en Pro secution w itnes ses ' ,^ bu t it fails to explain wh y this is anydifferent from o ther cases before this Cou rt , or other in ternation al crimina l cases, so asto warrant special considerat ion in the assessment of any impact on the fairness andexpedi t iousne ss of the proceedings a nd/o r outcom e of the t ria l.

32 . The Ruto Defence 's submissions as to why the Fi rs t and Second Issues wouldsignificantly affect the fair and expedit ious outcome of the proceedings rely, in largepart , on the possible impact on the fairness of the proceedings by the potentialgranting of possible future requests for addit ions of other new witnesses. Besides thefact tha t no requests for addi t ion of wi tnesses are current ly pending, the Chamberrecalls that i t previously held in i ts 3 June 2013 Decision that any requests to add newpersons to the witness l ist wil l be considered on a case-by-case basis, taking intoaccoun t the circumstan ces at the t ime.^^

^ Application, ICC-01/09-01/11-905-Conf, para. 7.^ ICC-01/09-01/11-762, para. 3 8.N o. ICC-01/09-01/11 15/17 24 Se pt em be r 2013

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33. Furthermore, the al leged significant effect on the expedit iousness of the proceedingsdue to the extra t ime needed for the test imony of two new witnesses clashes with theamount of adjournment t ime the Ruto Defence requested. In the face of al legedprejudice so significant that appellate intervention is warranted, the Ruto Defenceindicates that an adjourranent of only four weeks 'wil l properly balance the legit imateinterests of the Defence wi th the Tria l Chamber 's t r ia l management dut iesrespon sibil i ty to ens ure efficient p roc eed ing s' .^ Such a request calls into ques t ionwhether the immedia te reso lut ion by the Appeals Chamber would mater ia l ly advancethe proceedings, irrespective of the fact that the adjournment request was rejected. Byjo int ly request ing an adjournment of four weeks, the Ruto Defence undercuts i t ownargu m ents as to the need for imm edia te reso lut ion by the Appeals Cha mb er .

34 . As to the need for the immedia te reso lut ion by the Appeals Chamber , the Chamberfur ther considers tha t the use of the wording ' in the opinion of the Chamber ' in thethird criterion of Article 82(1 )(d), as l isted in the above section analysing of the legalframework,^^ makes clear that the assessment of whether an immediate resolution bythe Appe als Cha mbe r m ay be considered to mater ial ly advanc e the proceedings, i s forthe Chamber to make. However , the Ruto Defence 's submissions about doubts overthe correctness of the decision cast ing a cloud over the entirety of the proceedings^^an d th e credibil ity of the proceedings^^ app ear to repre sent solely i ts ow n view . TheRuto Defence does not present the Cha mb er wi th any arg um ents on the basis of wh ichthe Chamber could conclude that the doubts i t al leges would in fact arise. In thecurrent c i rcumstances, the Chamber does not i t se l f see any reason why immedia tereso lut ion of the mat ter wou ld m ater ia l ly advance the current proceed ings.

^ Application, ICC-01/09-01/11-905-Conf, para. 37.^ S ee para. 18 above.^ Application, ICC-01/09-01/11-905-Conf, para. 33 .^ Application, ICC-01/09-01/11-905-Conf, para. 34.N o. ICC-01/09-01/11 16/17 24 Se pt em be r 2013

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35. For the foregoing reasons, the Chamber rejects the applicat ion for leave to appeal theDecision on the Prosecution's Requests to Add New Witnesses to i ts List of Witnesses.

F O R T H E F O RE G O I N G RE A S O N S , T H E CH A M BE R H EREBY

REJECTS the Ruto Defence 's request for leave to appeal the Impugned Decision on theFirst and Second Issue.

Done in both English and French, the English version being authori tat ive.

Judge Cni l e Eboe -Osuj i(Presiding)

^yCC Judg e Olga Her re ra Carbucc ia Judg e Rober t F remrDated 24 September 2013At The Hagu e , The N e the r l ands

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