prosecutor v. katanga and ngudjolo chui, judgment on the ... · 7/12/2010 · judgment on the...

Cour Pénale Internatioriale

Intemat ioûal Criminal Court

J

Original: English No. ICC-01/04-01/07 OA 10 Date: 12 July 2010

THE APPEALS CHAMBER

Before: Judge Daniel David Ntanda Nsereko, Presiding Judge Judge Sang-Hyun Song Judge Erkki Kourula Judge Ekaterina Trendafilova Judge Joyce Aluoch

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO

IN THE CASE OF THE PROSECUTOR v. GERMAIN KATANGA and MATHIEU NGUDJOLO CHUI

Public document

Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled "Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings"

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Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor Counsel for Mr Katanga Ms Fatou Bensouda, Deputy Prosecutor Mr David Hooper Mr Fabricio Guariglia Mr Andreas O'Shea

REGISTRY Registrar Ms Silvana Arbia

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The Appeals Chamber of the Intemational Criminal Court,

In the appeal of Mr Germain Katanga against the decision of Trial Chamber II entitled

"Decision on the Motion of the Defence for Germain Katanga for a Declaration on

Unlawful Detention and Stay of Proceedings" of 20 November 2009 (ICC-01/04-

01/07-1666-Conf-Exp-tENG),

After deliberation.

By majority. Judge Erkki Kourula and Judge Ekaterina Trendafilova dissenting,

Delivers the following

JUDGMENT

The "Decision on the Motion of the Defence for Germain Katanga for a

Declaration on Unlawful Detention and Stay of Proceedings" is confirmed.

The appeal is dismissed.

REASONS

L KEY FINDINGS 1. In the absence of a provision in the Statute, the Rules of Procedure and

Evidence and the Regulations of the Court stipulating time limits for the filing of

motions alleging pre-surrender unlawful arrest and detention and seeking a stay of

proceedings, the Trial Chamber has discretion under article 64 (2) of the Statute to

determine the timeliness of such motions.

2. Based on the facts and circumstances of the present case, the Trial Chamber

committed no error of law, fact or procedure when it held that the "Defence motion

for a declaration on unlawful detention and stay of proceedings"^ (hereinafter:

"Defence Motion") was filed too late.

^ ICC-01/04-01/07-1258-Conf-Exp. A public redacted version was filed on 2 July as ICC-01/04-01/07-1263.

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3. Motions alleging unlawful arrest and detention of a suspect prior to his or her

surrender to the Court and seeking a stay of proceedings must, as a general rule, be

brought before the Pre-Trial Chamber.

II. PROCEDURAL HISTORY

A. Proceedings before the Trial Chamber

4. On 30 June 2009, Mr Katanga filed the Defence Motion. In the section entitled

"Relief sought", Mr Katanga requested the Trial Chamber to declare that his arrest

and detention in the Democratic Republic of the Congo (hereinafter: "DRC") was

unlawful and to terminate the proceedings against him.^ Mr Katanga indicated that the

declaration of unlawful arrest and detention would also serve as a basis for requesting

compensation and, potentially, reduction of his sentence."^ Elsewhere in the Defence

Motion, he indicated that the latter relief was sought in the altemative."^

5. On 20 November 2009, the Trial Chamber rendered the "Decision on the

Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention

and Stay of Proceedings"^ (hereinafter: "Impugned Decision"), denying the Defence

Motion.

6. On 30 November 2009, Mr Katanga filed the "Defence Application for Leave to

Appeal the Trial Chamber's Décision relative à la requête de la Défense de Germain

Katanga en illégalité de la détention et en suspension de la procédure''^ (hereinafter:

"Application for Leave to Appeal"), requesting leave to appeal the Impugned

Decision. The Prosecutor did not file a response.

7. On 11 February 2010, the Trial Chamber granted the Application for Leave to

Appeal in its "Decision on the 'Defence Application for Leave to Appeal the Trial

Chamber's Décision relative à la requête de la Défense de Germain Katanga en

^ Defence Motion, paras 121-122. ^ Defence Motion, paras 132-138. " Defence Motion, para. 2. ^ICC-01/04-01/07-1666-Conf-Exp-tENG. The public redacted version, ICC-01/04-01/07-1666-Red-tENG, is dated 3 December 2009. ^ICC-01/04-01/07-1691.

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illégalité de la détention et en suspension de la procédure''''^ (hereinafter: "Decision

Granting Leave to Appeal").

B, Proceedings before the Appeals Chamber

8. On 25 February 2010, Mr Katanga filed the "Document in Support of the

Defence Appeal of the Décision relative à la requête de la Défense de Germain o

Katanga en illégalité de la détention et en suspension de la procédure'' (hereinafter:

"Document in Support of the Appeal").

9. On 11 March 2010, the Prosecutor filed the "Prosecution Response to Katanga's

appeal against the 'Decision on the Motion for the Defence for Germain Katanga for a

Declaration on Unlawful Detention and Stay of Proceedings'"^ (hereinafter:

"Response to the Document in Support of the Appeal").

III. PRELIMINARY ISSUES

A. Compliance with time limits

10. In this appeal, the Appeals Chamber considers it necessary to determine

whether Mr Katanga and the Prosecutor filed their respective documents in

compliance with the time limits prescribed by the Regulations of the Court.

1. Filing of the Document in Support of the Appeal

11. Regulation 65 (4) of the Regulations of the Court provides that "the appellant

shall file, within ten days of notification of the decision granting leave to appeal, a

document in support of the appeal". In line with this provision, read with regulation

33 (1) and (2) of the Regulations of the Court, Mr Katanga's document in support of

the appeal was due to be filed on 25 February 2010 at 16h00. Mr Katanga filed the

Document in Support of the Appeal on 25 February 2010 at 15h55. The Registrar

notified the Prosecutor of the Document in Support of the Appeal on the same day.

However, the cover page of the Document in Support of the Appeal incorrectly

indicated that it was addressed to Trial Chamber II, instead of the Appeals Chamber.

Upon noticing the mistake, the Registrar blocked access to the Document in Support

of the Appeal in the Court's electronic record management system. On the same day

^ICC-01/04-01/07-1859. ^ ICC-01/04-01/07-1916-Corr. ^ ICC-01/04-01/07-1957-Conf-Exp. A redacted version of this document was filed simultaneously as ICC-01/04-01/07-1957-Red.

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(25 February 2010) at 17h22, Mr Katanga filed a corrected version of the Document

in Support of the Appeal. The Registrar notified the Prosecutor of the corrected

version on 26 February 2010, at 1 lh07.

12. In the view of the Appeals Chamber, the Document in Support of the Appeal

was filed within the applicable time limit, even though the corrigendum to this

document was filed after the expiry of the time limit. What is decisive is that the

original Document in Support of the Appeal was filed in time.

2. Filing of the Response to the Document in Support of the Appeal

13. Regarding the timing of the Prosecutor's response, the Appeals Chamber

observes that regulation 65 (5) of the Regulations of the Court provides that

"[pjarticipants may file a response within ten days of notification of the document in

support of the appeal". The Prosecutor filed his Response to the Document in Support

of the Appeal on 11 March 2010. The Prosecutor states that he calculated the time

limit on the basis of the notification of the corrected version of the Document in

Support of the Appeal. ^

14. In the Appeals Chamber's view, the time limit for the submission of the

Response to the Document in Support of the Appeal should indeed be calculated on

the basis of the notification on 26 February 2010. Although the Prosecutor was

notified of the original Document in Support of the Appeal on 25 February 2010, the

Registrar removed electronic access to this document shortly after notification. The

Prosecutor regained electronic access to the Document in Support of the Appeal only

with the notification of the corrigendum on 26 February 2010. In light of these

circumstances, the Appeals Chamber considers that the effective date of notification

of the Document in Support of the Appeal was 26 February 2010, and not 25 February

2010. Thus, the Prosecutor filed the Response to the Document in Support of the

Appeal within the time limit as stipulated under regulation 65 (5), read with regulation

33 (1) and (2) of the Regulations of the Court.

° Response to Document in Support of the Appeal, footnote 11.

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B. Confidential filing of the Response to the Document in Support of the Appeal

15. The Prosecutor filed the Response to the Document in Support of the Appeal in

both a confidential ex parte version and a public redacted version. ^ The latter

document contained only one redaction. The Appeals Chamber notes that the

Prosecutor did not indicate on what basis he filed the Response to the Document in

Support of the Appeal confidentially and exparte. The Appeals Chamber reminds the

Prosecutor of his obligation under regulation 23 bis of the Regulations of the Court to

state the factual and legal basis for a non-public filing. The purpose of this provision

is to clearly inform the relevant Chamber of the reason why the filing as non-public is

necessary. The mere filing of a redacted version of a document does not fulfil this

purpose.

IV. MERITS

A. Summary of Impugned Decision

16. In the Impugned Decision, the Trial Chamber considered whether the Defence

Motion was filed in time. The Chamber stated that it had to satisfy itself whether the

legal instruments of the Court permitted the Defence Motion to be filed after the 19

confirmation of the charges and at the stage of the proceedings at which it was filed.

17. The Trial Chamber held that a "challenge to the lawfulness of the arrest and

detention of an accused, in particular where such a challenge is accompanied by an

application to stay or terminate the proceedings, must be submitted in the initial phase

of the proceedings." To buttress its holding, the Trial Chamber explained that it was

important that challenges to the lawfulness of arrest and detention be raised "as early

as possible during the pre-trial phase" in order to avoid delaying or obstructing the

fair conduct of the proceedings. "^ To the Trial Chamber, it was vital that issues that

could delay the trial or its faimess be determined at the beginning of the

proceedings.^^ To further support its decision, the Trial Chamber referred, by way of

example, to article 19 of the Statute, which requires challenges to admissibility and

' ICC-01/04-01/07-1957-Conf-Exp and ICC-01/04-01/07-1957-Red, respectively. ' Impugned Decision, para. 38. ^ Impugned Decision, para. 39 " Impugned Decision, para. 40. ^ Impugned Decision, para. 40

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Jurisdiction to be made at the earliest opportunity,^^ and to rules 58 and 122 of the

Rules of Procedure and Evidence. ^ The Trial Chamber also referred to article 64 (2)

of the Statute, which obliges Trial Chambers to ensure the fair and expeditious

conduct of the trial, with full respect of the rights of the accused. ^ The Trial Chamber

noted that the co-accused in the case, Mr Mathieu Ngudjolo Chui, also had a right to

be tried without undue delay, which the Trial Chamber had to ensure.^^

18. The Trial Chamber then analysed the various opportunities afforded to Mr

Katanga during the proceedings before the Pre-Trial Chamber to raise the issue of the

alleged unlawfulness of his pre-surrender arrest and detention in the DRC, and

concluded that "such a motion should have been introduced during the pre-trial phase 91

and addressed at that stage." Notwithstanding this conclusion, the Trial Chamber

noted certain statements of the Pre-Trial Chamber during the pre-trial phase that "may

have led the Defence for the Accused to believe that it was authorised to defer the

filings of its motion and postpone it until after the decision on the confirmation of 99

charges". For that reason, the Trial Chamber went on to consider whether the 9"

"[Trial] Chamber itself was officially seized of such a motion, and in due time".

19. The Trial Chamber assessed the overall facts and circumstances of the case and

ruled that Mr Katanga had not furnished it with "any convincing reasons to justify the

filing of the Motion at such an advanced stage in the proceedings".^"^ In reaching this

conclusion, the Trial Chamber considered the conduct of Mr Katanga and his counsel

during the trial phase. It also considered the various opportunities available to Mr

Katanga to raise the issue of alleged unlawful pre-surrender arrest and detention, both

in response to the Chamber's "Order Instructing the Participants and the Registry to

Respond to Questions of Trial Chamber II for the Purpose of the Status Conference"' ^

of 13 November 2008 (hereinafter: "Order of 13 November 2008") and at status

conferences in November 2008 and February 2009, and in relation to the Chamber's

^ Impugned Decision, para. 41. ^ Impugned Decision, para. 41. ^ Impugned Decision, para. 42. 19

20 Impugned Decision, para. 42. Impugned Decision, paras 43-47.

' Impugned Decision, para. 48. ^ Impugned Decision, para. 49. • Impugned Decision, para. 50. ' Impugned Decision, para. 61.

^ ICC-01/04-01/07-747-tENG.

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reviews of Mr Katanga's detention in December 2008, March and April 2009, July

2009 and November 2009.^^ The Trial Chamber emphasised that Mr Katanga had

failed to raise the matter between the constitution of the Chamber on 24 October 2008

and 1 June 2009, in spite of the numerous opportunities that were available to him to

do so. ^

20. Furthermore, the Chamber found that although Mr Katanga stated in the

Defence Motion that information obtained at the hearing of 1 June 2009 was decisive

for the filing of the application, the arguments advanced in that motion were based

"for the most part on information which was already available to the Defence at the 9R

pre-trial phase" and that Mr Katanga had received the requested information from

the DRC as far back as 28 August 2008.^^ The Trial Chamber emphasised that

strategic reasons could not in themselves justify the delay in the filing of the motion" ^

and concluded that the Defence for Mr Katanga had not met its obligation to act

expeditiously, having filed the Defence Motion seven months after he had been called

upon to "submit to the Chamber the relevant issues on which it wished the latter to T 1

rule". The Trial Chamber held that the Defence Motion was filed at "too advanced a '^9

stage in the proceedings", rendering it inadmissible.

B. Arguments of the parties

1. Arguments of Mr Katanga

21. Mr Katanga advances two grounds of appeal. First, he submits that the Trial

Chamber erred in law when it held that the Defence Motion was filed too late.

Secondly, he argues that the Trial Chamber erred on the facts when it found that the

Defence Mofion had been filed out of time.

22. The thrust of Mr Katanga's first ground of appeal is that the Trial Chamber

imposed a retroactive time limit on the Defence Motion. " In his view, he was unfairly

^ Impugned Decision, paras 52-57. ^ Impugned Decision, paras 51-59. ^ Impugned Decision, para. 61. ^ Impugned Decision, para. 61. ^ Impugned Decision, para. 64. ' Impugned Decision, para. 65.

^ Impugned Decision, para. 66. ^ Document in Support of the Appeal, para. 13. •" Document in Support of the Appeal, para. 18.

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denied the right to be heard on a fundamental issue, namely the lawfulness of his

arrest and detention in the DRC. Relying on jurisprudence from the European Court

of Human Rights (hereinafter: "ECtHR"), Mr Katanga argues that the right of access

to a court to redress serious violations of human rights is subject only to limits that are o r

legitimate, proportionate and that do not impair the very essence of that right.

According to him, the time limit imposed by the Trial Chamber on the Defence

Motion fell short of these requirements.

23. Mr Katanga asserts that the time limit imposed on the filing of the Defence

Motion was not legitimate because it violated the principle of legality.^^ He argues

that an accused person must be able to determine with clarity a deadline for the filing

of applications seeking redress for human rights violations. In this case, there was

no time limit in the Statute, the Rules of Procedure and Evidence and the Regulations oo

of the Court that he had to meet. He recalls that the Appeals Chamber previously

characterised motions such as the Defence Motion as being of a sui generis nature,

and argues that article 19 of the Statute and rule 122 (3) and (4) of the Rules of OQ

Procedure and Evidence were therefore inapplicable to the Defence Motion. He

observes that the Impugned Decision itself failed to specify a time frame for the filing

of the Defence Motion." ^ He therefore submits that it was unclear to him, both before

and after the Impugned Decision, when he was expected to file the Defence Motion." ^

24. Further, Mr Katanga submits that the Impugned Decision was disproportionate,

given the importance of the issue he sought to litigate."^^ In his view, a dismissal of the

Defence Motion simply because it was perceived as having been filed late could

undermine the faimess of trial" " and result in a gross miscarriage of justice if the

application is well founded." " Moreover, he submits that the Trial Chamber could

^ Document in Support of the Appeal, para. 8. ^ Document in Support of the Appeal, para. 13. ^ Document in Support of the Appeal, para. 12. ^ Document in Support of the Appeal, para. 13. ^ Document in Support of the Appeal, paras 16-17. ^ Document in Support of the Appeal, para. 13. ^ Document in Support of the Appeal, para. 17. ^ Document in Support of the Appeal, paras 19-21. ^ Document in Support of the Appeal, para. 21. " Document in Support of the Appeal, para. 22.

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have decided his request for compensation and/or mitigation of his sentence in case of

a conviction without "effecting the process"."^^

25. Mr Katanga also contends that he must be allowed a level of discretion to

decide when it is appropriate to file a motion for violations of his rights." ^ He argues

that imposing a time limit without taking into account the difficulties faced by an

accused in proving a matter of abuse undermines the exercise of the right of access to

a court." ^ He emphasises that he had to ensure that the Defence Motion was properly

substantiated before presenting it. ^ He maintains that he had been unable to gain

sufficient information from the DRC before the hearing on 1 June 2009 and that the

DRC's oral submissions on that date were critical to his decision to file the Defence

Motion." ^

26. As his second ground of appeal, Mr Katanga argues that the Trial Chamber

erred factually when it decided that the Defence Motion had been filed too late. In his

opinion, the Chamber reached its conclusions based on irrelevant factors, while

failing to consider relevant factors.

27. Mr Katanga argues that the finding that the motion was too late was irrelevant

to the admissibility of the Defence Motion, given the absence of a time limit. ^ He

further takes the view that the availability of earlier opportunities to raise the issue of

his unlawful arrest and detention in the DRC was an irrelevant consideration.^^ He

submits Jhat asking him to comment on his conditions of detention did not require him

to challenge the lawfulness of his arrest and detention in the DRC, as the review of his

conditions of detention had a different purpose.^^ Lastly, he argues that the Trial

Chamber should not have considered Mr Ngudjolo Chui's right to be tried

expeditiously because Mr Katanga's rights should not depend on whether he was

being tried separately or jointly. "^

^ Document in Support of the Appeal, para. 26. ^ Document in Support of the Appeal, para. 30. "^ Document in Support of the Appeal, para. 30. ' ^ Document in Support of the Appeal, paras 29-30. ^ Document in Support of the Appeal, para. 29. ° Document in Support of the Appeal, para. 33. ' Document in Support of the Appeal, para. 35.

^ Document in Support of the Appeal, para. 40. ^ Document in Support of the Appeal, para. 41.

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C. Arguments of the Prosecutor

28. The Prosecutor submits that the first ground of appeal does not arise from the

Impugned Decision. He notes that, contrary to Mr Katanga's contentions, the Trial

Chamber did not impose a time limit for filing the Defence Motion. " The Prosecutor

is of the view that the Impugned Decision was based on article 64 (2) of the Statute,

which vests in the Trial Chamber discretionary power to manage the proceedings.^^

He submits that the Trial Chamber did not commit any legal, factual or procedural

errors and that the Appeals Chamber should dismiss the appeal.^^

29. First, the Prosecutor argues that the Trial Chamber did not err in its

interpretation of the law and that the principle of legality was not violated.^^ He states

that given the sui generis nature of the Defence Motion, the Trial Chamber correctly

exercised its discretion under article 64 of the Statute to control the timing of the

motion. He also submits that although the Trial Chamber referred to article 19 of the

Statute and rule 122 of the Rules of Procedure and Evidence as evidence of the

general principle that certain motions must be filed at an early stage to expedite the

proceedings,^^ the Defence Motion was ultimately rejected because of the facts and

circumstances of the case and not for failing to meet a time limit.^^ In the Prosecutor's

view, the Impugned Decision implied that such a motion could be heard at any stage

of the proceedings, provided that the circumstances of the case justified doing so and

convincing reasons were given. ^ Regarding the failure of the Trial Chamber to

consider the request for compensation and mitigation of sentence, the Prosecutor

argues that having dismissed the Defence Motion as having been filed late, any

remedies deriving from the Defence Motion were rendered moot. ^

30. Secondly, the Prosecutor submits that the Trial Chamber did not err on the facts.

On Mr Katanga's assertion that he had been unable to obtain the necessary

information from the DRC until the hearing on 1 June 2009, the Prosecutor draws

" Response to the Document in Support of the Appeal, para. 15. ^ Response to the Document in Support of the Appeal, para. 11. ^ Response to the Document in Support of the Appeal, para. 41. ^ Response to the Document in Support of the Appeal, para. 15. ^ Response to the Document in Support of the Appeal, para. 17. ^ Response to the Document in Support of the Appeal, para. 18. ^ Response to the Document in Support of the Appeal, para. 19. ' Response to the Document in Support of the Appeal, para. 19.

^ Response to the Document in Support of the Appeal, para. 23.

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attention to the Trial Chamber's finding that the information on which Mr Katanga

relied was largely available to him at the pre-trial phase and that he had received the

requested information on 28 August 2008. " The Prosecutor maintains that the Trial

Chamber's position was reasonable, given that Mr Katanga had sufficient information

by August 2008. " The Prosecutor asserts that by March 2008, he had also disclosed a

significant amount of relevant information to Mr Katanga. ^ He argues that on 1 June

2009, the DRC authorities merely confirmed information that Mr Katanga already

possessed prior to the hearing, and that no new information was presented. In this

regard, he highlights Mr Katanga's failure to point to information not already in his

possession prior to the hearing.^^ He also observes that the Defence Motion was based

on the same information as Mr Katanga's admissibility challenge.^^

31. Thirdly, the Prosecutor argues that the Trial Chamber did not commit a /-o

procedural error as it properly assessed the relevant factors. The Prosecutor

maintains that the Trial Chamber gave the necessary weight to the following factors:

the existence of earlier opportunities as evidence of the fairness of the proceedings;

Mr Katanga's discretion to file the motion at the proper time; ^ the Pre-Trial

Chamber's statements on the issue that may have influenced Mr Katanga to file the 79 7^

motion at a later stage; the information provided by the DRC on 1 June 2009; Mr

Katanga's strategy; ' the hearings on Mr Katanga's conditions of detention;^^ and the

nature of the Defence Motion. The Prosecutor disagrees with Mr Katanga that the

Trial Chamber gave weight to its duty to ensure Mr Ngudjolo Chui's right to a trial

without undue delay.

^ Response to the Document in Support of the Appeal, para. 24. '* Response to the Document in Support of the Appeal.

^ Response to the Document in Support of the Appea ^ Response to the Document in Support of the Appeal ^ Response to the Document in Support of the Appea ^ Response to the Document in Support of the Appea ^ Response to the Document in Support of the Appeal ^ Response to the Document in Support of the Appea ^ Response to the Document in Support of the Appea ^ Response to the Document in Support of the Appea • Response to the Document in Support of the Appea '* Response to the Document in Support of the Appea

^ Response to the Document in Support of the Appea ' ^ Response to the Document in Support of the Appea

para. 25. para. 26 para, 28. para. 29. para. 31. para. 32. para. 33. para. 34. para. 35. para. 36. para. 37. para. 39. para. 40

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D. Determination by the Appeals Chamber

1. Issue on appeal and standard of review

32. As stated above, Mr Katanga's first ground of appeal is that the Trial Chamber

erred in finding that the Defence Motion was filed too late. He asserts that by so

finding, the Trial Chamber imposed a time limit retroactively as the legal instruments

of the Court do not contain an express time limit for filing motions alleging pre-

surrender unlawful arrest and detention and seeking a stay of proceedings, and that

this violated the principle of legality. As his second ground of appeal, Mr Katanga

states that the Trial Chamber erred on the facts by placing undue weight on irrelevant

facts while ignoring relevant ones. In the view of the Appeals Chamber, both grounds

of appeal are closely connected and will therefore be considered together.

33. The question that arises in this appeal is whether in the absence of an express

time limit in the Statute, Rules of Procedure and Evidence and the Regulations of the

Court, the Trial Chamber erred when it dismissed the Defence Motion as having been

filed too late. The Appeals Chamber notes the Prosecutor's submission that the

Impugned Decision was a "matter of trial management pursuant to [the Trial

Chamber's] discretionary power under Article 64(2) and based on the facts and

circumstances of the case".^^ The Appeals Chamber agrees with this characterisation

of the Trial Chamber's powers. As will be explained later in this judgment, article 64

(2) obliges the Trial Chamber to ensure that the trial is fair and expeditious and is

conducted with full respect for the rights of the accused and due regard for the

protection of victims and witnesses. In carrying out its obligation, the Trial Chamber

thus has to undertake a judicious balancing of all of these competing interests. The

question whether an accused person's rights have been violated depends on how the

Trial Chamber weighed these factors in arriving at its conclusions. This tums on the

specific facts and circumstances of each case.

34. As the Appeals Chamber has held previously, it will not interfere with a

discretionary decision of another Chamber unless that decision is vitiated by a legal

error, a factual error or a procedural error, and only if the error materially affected the

^ Response to the Document in Support of the Appeal, para. 11.

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decision. ^ This may require the Appeals Chamber to determine whether the Chamber

that rendered the decision under review erred in law, gave undue weight to extraneous

factors or failed to consider relevant factors. Under this standard of review, the

Appeals Chamber will not reverse the Impugned Decision simply because it would

have decided differently. It can only do so when it finds that the Trial Chamber

exercised its discretion incorrectly. This standard of review will guide the analysis of

the merits of this case.

2. No legal error as to timing of motions alleging illegal pre-surrender arrest and detention and seeking a stay of proceedings

35. The Appeals Chamber notes Mr Katanga's argument that in the absence of any

specific provision in the Statute and Rules of Procedure and Evidence, motions

alleging unlawful pre-surrender detention and seeking a stay of proceedings may be

brought at any time.^^

36. In contrast, at paragraph 39 of the Impugned Decision, the Trial Chamber

stated:

[A] challenge to the lawfulness of the arrest and detention of an accused, in particular where such a challenge is accompanied by an application to stay or terminate the proceedings, must be submitted in the initial phase of the proceedings.

37. The Trial Chamber further stated that "it is in the interests of all, and primarily

of the suspects who have been deprived of their liberty, that the issue of the possible

unlawfulness of their detention be raised and addressed as early as possible during the

pre-trial phase",^^ referring to the proceedings before the Pre-Trial Chamber. ^

Nevertheless, in light of the Pre-Trial Chamber's statements on the timing of such

motions, the Trial Chamber decided to consider the opportunities afforded to Mr

Katanga to bring the Defence Motion after the confirmation of charges decision;^^ in

so doing, it recognised the need for flexibility in the application of the principle it had

identified.

^ See Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, "Judgment on the appeal of the Defence against the 'Decision on the admissibility of the case under article 19 (1) of the statute' of 10 March 2009", 16 September 2009, ICC-02/04-01/05-408 (OA 3), para. 80. ^ Document in Support of the Appeal, para. 24. ^ Impugned Decision, para. 40. ^ Impugned Decision, para. 48. ^ See Impugned Decision, paras 48 et seq.

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38. The Appeals Chamber must thus determine whether the principle that the Trial

Chamber identified was correct, or whether it reveals a legal error. Only if a legal

error is shown to exist, will the Appeals Chamber have to determine whether such

error vitiated the Impugned Decision.

39. The Appeals Chamber notes that none of the time limits stipulated in the

Statute, the Rules of Procedure and Evidence or the Regulations of the Court directly

apply to motions alleging unlawful pre-surrender arrest and detention and seeking a

stay of proceedings. This is due to the fact that such motions are not provided for in oo

the Court's legal instruments; they are therefore of a sui generis character. In the

absence of an express statutory time limit, the question then arises whether there are

any limitations as to when motions alleging unlawful pre-surrender detention and

seeking a stay of the proceedings may be brought.

40. The Appeals Chamber finds that the approach adopted by the Trial Chamber on

the timing of motions alleging unlawful pre-surrender arrest and detention and

seeking a stay of proceedings was correct. The Appeals Chamber considers that the

principle identified by the Trial Chamber is based, firstly, on considerations of

efficiency and judicial economy within the procedural framework of the Court. The

Statute has established a confirmation procedure, which takes place before a Pre-Trial

Chamber. One of the purposes of this procedure is to prepare the case for trial and to

filter out cases that should not go to trial.^^ A case will only be referred to a Trial

Chamber if there are "substantial grounds to believe" that the person in question has

committed the crimes charged. In addition, the Pre-Trial Chamber has the primary

responsibility of ensuring the protection of the rights of suspects during the

investigation stage of the proceedings.^^

^ Prosecutor v. Thomas Lubanga Dyilo, "Judgment on Appeal of Mr. Thomas Lubanga against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006", 14 December 2006 (OA 4), ICC-01/04-01/06-772, para. 24 (hereinafter: "Lubanga OA 4") ^ See article 61 of the Statute. ^ M. Marchesiello, "Proceedings before the Pre-Trial Chambers", in A. Cassese et al. (eds). The Rome Statute of the International Criminal Court: A Commentary, Vol II, (Oxford University Press, 2002), pp. 1231-1239. ^ See article 61 (7) of the Statute. ^ M. Marchesiello, "Proceedings before the Pre-Trial Chambers", in A. Cassese et al. (eds). The Rome Statute of the International Criminal Court: A Commentary, Vol II, (Oxford University Press, 2002), pp. 1235-1238, K. Khan, "Initial proceedings before the Court", in O. Triffterer (ed.). Commentary on

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41. It is consistent with the role of the Pre-Trial Chamber and the purpose of the

confirmation proceedings that, in the absence of any provision to the contrary,

motions alleging unlawful pre-surrender arrest and detention and seeking a stay of

proceedings should be brought during the pre-trial phase of the proceedings. If such

motions are made at an unduly late stage of the proceedings, it would turn the Court's

attention away from the trial proper and delay the hearing of the substantive case.

42. To accept Mr Katanga's view on the timing of motions seeking a stay based on

alleged unlawful pre-surrender arrest and detention would be to defeat the purpose of

the Statute to ensure fair and expeditious trials. Such an approach could lead to

unnecessary disruptions to the trial, result in delays and thus create uncertainty for the

conduct of the trial.

43. The Appeals Chamber observes that expeditiousness is a recurrent theme in the

Court's legal instruments. The Statute and the Rules of Procedure and Evidence place

an onus on all those involved in the trial to act in a diligent and expeditious manner in o o

the performance of their obligations. The duty applies to the Chambers of the Court, O Q

the parties and participants. As regards the accused person, where he or she is

represented by counsel, the Code of Professional Conduct for counsel enjoins counsel

to represent him or her "expeditiously with the purpose of avoiding unnecessary delay

in the conduct of the proceedings".^^

44. In addition to the above, the Appeals Chamber notes that the Trial Chamber

referred to article 19 of the Statute and rules 122 (2), (3) and (4) of the Rules of

Procedure and Evidence to illustrate the view that motions such as the Defence

Motion must, in principle, be filed as early as possible, preferably during the pre-trial

phase of the proceedings. Given that the Trial Chamber refers to these provisions by

the Rome Statute of the International Criminal Court: Observers' Notes, Article by Article,!^^ ed., (Beck et al., 2008), p. 1161. ^ For the Trial Chamber, this duty arises from articles 64 (2) and 67 (1) (c) of the Statute, rules 132 (2) and 84 of the Rules of Procedure and Evidence; in respect of the Appeals Chamber, see, for example, articles 18 (4), 56 (3) (b) and 82 (2) of the Statute and rule 156 (4) of the Rules of Procedure and Evidence; in respect of the Pre-Trial Chamber, see, for example, articles 57, 61 (1) and (3) of the Statute; related to the Court generally, see, for example, articles 17 (2), 20 (3) (b), 58 (2), 82 (1) (d), 90 (3) of the statute and rules 91 (3) and 101 of the Rules of Procedure and Evidence. ^ In respect of the Prosecutor, see, for example, articles 61 (3) and 67 (1) (c) of the Statute and rule 52 (2) of the Rules of Procedure and Evidence; in respect of the Registrar, see, for example, rule 16 (2) (b) and 92 (5) of the Rules of Procedure and Evidence; in respect of States, see, for example articles 18 (5) and 19 (5) of the Statute. ° Article 24 (5) of the Code of Professional Conduct for counsel.

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way of example only, the Appeals Chamber sees no need to consider any further in

the context of this appeal the correctness or otherwise of the Trial Chamber's

approach to these provisions.^^

45. The need to act expeditiously must also be viewed in the context in which the

Court operates. The crimes under the Court's jurisdiction are by their nature complex

and their adjudication takes time. It is vital for cases to be properly managed from the

start to forestall unnecessary delays.^^ Undoubtedly, delays in proceedings are

inimical to the proper administration of justice.^^ For instance, witnesses to the

alleged crime may become unavailable, or may, with the passage of time, forget what

transpired. Material evidence, both incriminatory and exculpatory, may disappear or

may be rendered useless by exposure to the elements. In this case, both the

prosecution and the accused may be prejudiced.

46. An expeditious trial is beneficial to victims. It assures them of receiving justice

and of going through the healing process quickly. For witnesses, it relieves them as

soon as possible of the anxiety of having to appear in court to give evidence.

Unreasonable delay in commencing or finalising a trial may also diminish public

interest and public support for, and cooperation with, the Court. Without such support

' To support its position further, the Trial Chamber, at footnote 59 of the Impugned Decision, referred to article 19 (4), (5) and (8) of the Statute and its decision entitled "Motifs de la décision orale relative a l'exception d'irrecevabilité de l'affaire (article 19 du Statut)", 16 June 2009, ICC-01/04-01/07-1213, para 44, in which it held that challenges to admissibility must be brought at the pre-trial phase. The Appeals Chamber notes that its reference to this decision does not indicate its endorsement of the interpretation given therein. ^ It has been observed that the experience at the Intemational Criminal Tribunal for the former Yugoslavia (hereinafter: "ICTY") shows that there are advantages in terms of expeditiousness when trials are streamlined at the commencement of the proceedings. See O. Fourmy, "Powers of the Pre-Trial Chambers" in A. Cassese et al. (eds). The Rome Statute of the International Criminal Court: A Commentary, Vol. II (2002), p. 1211 and 1228-9. ^ ECtHR, Bottazzi v Italy, "Judgement", 28 July 1999, application no. 34884/97, para. 22, when in relation to 'reasonable time', the Court reaffirmed 'the importance of administering justice without delays which might Jeopardise its effectiveness and credibility'. See also South Africa, Constitutional Court, Leach Mokela Mohlomi v Minister of Defence, (1997) 2 Legal Resources Centre 21 A, para 11, where the South African Constitutional Court opined that time-limits could be justified in light of the fact that "delays were detrimental to the interests of justice and prolonged the uncertainty of the relevant parties as regards their affairs. Further, adjudication after a long period of time had elapsed could be difficult in terms of obtaining reliable testimony and documentary evidence". See also S. Trechsel, Human Rights in Criminal Proceedings (Oxford University Press, 2005), p. 136 ("it is quite clear that the right to be tried by a court can only be effectively enforced if a decision is reached within a reasonable time. The alternative would be postponement of ad calendas graecas - a denial of justice. The importance of the right to be tried within a reasonable time becomes even more evident if one keeps in mind that access to court is one of the fundamental elements of the rule of law").

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and cooperation the Court would find it difficult to have its decisions and orders

respected or enforced.

47. Expeditiousness is thus an independent and important value in the Statute to

ensure the proper administration of justice, and is therefore more than just a

component of the fair trial rights of the accused. " For this reason, article 64 (2)

enjoins the Trial Chamber to ensure that the trial is both fair and expeditious.

48. As the Appeals Chamber has previously held, the Court's legal instruments do

not bar an accused person from bringing a motion challenging his or her alleged

unlawful pre-surrender arrest and detention with a view to seeking a stay of

proceedings.^^ However, the principle correctly identified by the Trial Chamber

requires the accused person to bring such motions in the pre-trial stage of the

proceedings. In the view of the Appeals Chamber, this does not lead to unfaimess vis-

à-vis the accused person. The Appeals Chamber notes in particular that the principle

allows for flexibility. An accused person's right to raise the matter of allegedly

unlawful pre-surrender arrest and detention and to seek a stay on that basis is not

denied, but is given prominence before the Pre-Trial Chamber.^^ Only in

Prosecutor v. Thomas Lubanga Dyilo, "Judgement on the appeal of the Prosecutor against the decision of Trial Chamber I entitled 'Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008'", Separate Opinion of Judge Georghios M. Pikis, 21 October 2008, ICC-01/04-01/06-1486 (OA 13), para. 31; ^^^ also. Prosecutor v. Thomas Lubanga Dyilo, "Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled 'Decision on the release of Thomas Lubanga Dyilo'", Dissenting Opinion of Judge Georghios M. Pikis, ICC-01/04-01/06-1487, 21 October 2008 (OA 12), para. 15, where he states "[a]rticle 64 (2) of the Statute binds the Court to hold, not only a fair, but an expeditious trial too. Expeditiousness denotes the speedy doing or transaction of something. The standard introduced by article 64 (2) of the Statute is more stringent than the one imported by the requirement of trial being held without undue delay, which is incorporated in the notion of a fair trial; a standard that the Court is duty bound to uphold". ^ Lubanga OA 4, paras 36-39. ^ See Intemational Criminal Tribunal for Rwanda (hereinafter: "ICTR"), Trial Chamber, Prosecutor v. Pauline Nyiramasuhuko, "Decision on Defence Motion for a Stay of Proceedings and Abuse of Process", 20 February 2004, ICTR-97-21-T, paras 1 9 - 2 0 , where in relation to a similar application the Trial Chamber stated: "Before examining its merit, the Chamber notes the belatedness of this submission, contained in a Motion filed on 25 June 2003, on an alleged violation that occurred in July 1997. In particular, the Chamber emphasizes that such issue should have been raised during the Applicant's initial appearance. In this connection, the Chamber notes that the lead Defence Counsel on this Motion was Defence Counsel at the initial appearance and has been Defence Counsel throughout the proceedings against the Accused Nyiramasuhuko. Pursuant to Article 19(3) of the Statute, during the initial appearance of the Accused: 'The Trial Chamber shall [. . .] satisfy itself that the rights of the accused are respected'. It is the view of the Trial Chamber that one of the main purposes of the initial appearance of an Accused is to verify the legality of his or her arrest and the respect of his or her rights before the commencement of trial proceedings".

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circumstances where the accused person could not reasonably be expected to raise the

matter at that stage will he or she be permitted to raise it at the trial stage. The

principle thus strikes a fair balance between the rights of the accused person and the

requirement of expeditiousness.

49. The Appeals Chamber is not persuaded by Mr Katanga's argument that "it

makes perfect sense that there is no deadline for submitting motions addressing

violations of [the] fundamental rights of the accused, because the event triggering

such motions may occur at any time of the proceedings".^^ The Appeals Chamber

notes that in light of what it has stated earlier under paragraph 33, it cannot be correct,

as Mr Katanga argues, that such a motion may be brought at any time of the

proceedings, regardless of the facts and circumstances of the case, faimess to the

other parties and participants and the statutory requirement for expeditiousness.

Furthermore, while it is correct that there may be instances where events arising after

the pre-trial phase may justifiably lead to a motion seeking a stay of the proceedings,

the present case concerns a motion for stay of proceedings based on alleged human

rights violations that occurred before Mr Katanga's surrender to the Court. The

Appeals Chamber notes that in any event, and as stated above, the principle identified

by the Trial Chamber provides for flexibility. Whether in the specific circumstances

of the case, it might have been impossible for Mr Katanga to bring the Defence

Motion earlier is an issue that will be addressed below. It does not call into question

the correctness of the principle as such.

3. No retroactive application of a time limit

50. Mr Katanga contends that in the absence of an express time limit in the legal

instruments of the Court, it was unclear what time limit he had to observe.^^ He

maintains that with the Impugned Decision, the Trial Chamber imposed a retroactive • 99

time limit.

51. The Appeals Chamber notes that this is the first case before this Court where the

question of the timing for motions alleging unlawful pre-surrender arrest and

detention and seeking a stay of proceedings arises. The Appeals Chamber also notes

^ Document in Support of the Appeal, para. 26. ^ Document in Support of the Appeal, para. 15. ^ Document in Support of the Appeal, para. 18.

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that when Mr Katanga raised before the Pre-Trial Chamber, the issue of the

lawfulness of his arrest and detention in the DRC, that Chamber gave him the

impression that he could file a motion in this regard during the trial phase of the

proceedings. ^ The Appeals Chamber observes that in light of the Pre-Trial

Chamber's statements, the Trial Chamber excused Mr Katanga's failure to file an

application on the issue during the pre-trial phase of the proceedings - the period it

had held to be the most appropriate - and correctly extended its analysis to the trial

phase when determining whether the Defence Motion was filed in time. Therefore, the

Trial Chamber did not retroactively apply the principle that motions alleging pre-

surrender unlawful arrest and detention and seeking a stay of proceedings should, as a

general rule, be filed at the pre-trial phase to the Defence Motion. Rather, it took a

decision based on the specific facts and circumstances of the case. Thus, the Appeals

Chamber is not persuaded that the Trial Chamber applied a retroactive time limit.

4. No error in the Trial Chamber's exercise of discretion in relation to the trial phase

52. Having concluded that the Trial Chamber was correct in extending its analysis

to the trial phase of the proceedings, the Appeals Chamber must next consider

whether the Trial Chamber correctly exercised its discretion when it held that the

Defence Motion was filed too late.

53. The Appeals Chamber observes that in the circumstances of the present case,

the Trial Chamber's power to determine the timeliness of a motion alleging unlawful

pre-surrender arrest and detention and seeking a stay of the proceedings during the

trial phase derives from article 64 (2) of the Statute. The object of article 64 (2) is to

ensure that the trial is managed properly and expeditiously whilst giving full respect

to the rights of the accused. However, full respect for the rights of the accused does

not mean that a Trial Chamber may not control the manner in which an accused

person acts in the proceedings. Under article 64 (2) of the Statute, the Trial Chamber

has the power to regulate the conduct of the parties and participants so as to ensure.

^^ ICC-01/04-01/07-T-24-CONF-EXP, 17 April 2008, p. 25, lines 17-25 and p. 26, lines 1-9; "Decision on the 'Defence Application pursuant to Article 57 (3) (b) of the Statute to Seek the Cooperation of the Democratic Republic of Congo (DRC)'", 25 April 2008, ICC-01/04-01/07-444; p.l 1; ICC-01/04-01/07-T-29-CONF-EXP, 14 May 2008, p. 9-10.

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among other considerations, that such conduct does not cause undue delay to the

proceedings. ^

54. In the view of the Appeals Chamber, a party to a proceeding who claims to have

an enforceable right must exercise due diligence in asserting such a right. This is as it

should be in order for the Trial Chamber to take account of the interests of the other

parties to and participants in the proceedings and of the statutory injunction for

fairness and expeditiousness. The Appeals Chamber agrees with the Trial Chamber's

conclusion that parties must submit motions that have repercussions on the conduct of

the trial in "a timely manner". The Appeals Chamber interprets "timely manner" to

mean that the parties must act within a reasonable time. However, what is reasonable

or unreasonable in relation to time always tums on all the circumstances of the case, 1 rvo

including the conduct of the person seeking the Court's assistance.

55. Based on the facts and circumstances of the instant case, the Trial Chamber

concluded that Mr Katanga did not act in a timely manner and rejected the Defence

Motion on this ground. Mr Katanga contends that this conclusion was an erroneous

exercise of discretion. Mr Katanga raises several arguments to support his claim,

which will be addressed below.

'°' The legislative history of article 64 (2) shows that the delegates believed that a fair and expeditious trial would not only preserve the rights of the accused but "would prevent a guilty person from delaying the proceedings, as well as secure the early release of an innocent person" and enable the court to "properly manage the case to achieve an early resolution of the case". See General Assembly, "Draft Report of the Preparatory Committee", 23 August 1996, A/AC.249/L.15, p. 14; F. Terrier, Cassese et al. (eds). The Rome Statute of the International Criminal Court: A Commentary, Vol. 11, (2002), p. 1264-5, where it is observed that the judges of the ICTY, in the debate preceding the enactment of this provision, emphasised the need to give judges of the Court, a "means for ensuring the rapidity of the proceedings and blocking any dilatory strategy a party might seek to pursue". 102 iQj^^ JndiX Chamber, Prosecutor v. Kanyabashi, "Decision on the Defence Extremely Urgent Motion on Habeas Corpus and for Stoppage of Proceedings", 23 May 2000, ICTR-96-15-I, paras 68 -69 where the tribunal, citing the ECtHR in respect of the reasonableness of the length of proceedings, observed: "In the opinion of the European Court of Human Rights, 'reasonableness of the length of the proceedings coming within the scope of Article 6 (1) must be assessed in each case according to the particular circumstances. The Court has to have regard, inter alia, to the complexity of the factual or legal issues raised by the case, to the conduct of the applicants and the competent authorities and to what was at stake for the former, in addition to complying with the 'reasonable time' requirement [...]'". The tribunal continued: "the Chamber emphasises that the conduct of both parties can cause the trial of an Accused to be unduly delayed and reminds both parties to perform their duties in a manner to expedite the proceedings so as to ensure respect of the Accused's fundamental human right to trial without undue delay".

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56. At the outset, the Appeals Chamber observes that to support his arguments, Mr

Katanga relies^^^ on four cases of the ECtHR developed in relation to the institution of

proceedings to determine "civil rights and obligations". " The Appeals Chamber

draws attention to the fact that the jurisprudence of the ECtHR cited by Mr Katanga

was developed in a different context than that giving rise to the present appeal. The

case of Golder v. United Kingdom concemed the right of a prisoner to sue a fellow

prisoner for libel; ^^ the case of Stubbings and others v. United Kingdom concemed

limitation periods for compensation claims based on childhood abuse;^ the case of

Prince Hans-Adam II of Lichtenstein v. Germany concerned the right to access to

court "in respect of [a] claim for restitution of property, namely a painting confiscated

by the former Czechoslovakia";^^'' and the case of Ashingdane v. United Kingdom

concerned the right to challenge the denial of the transfer of a patient suffering from a

mental disorder to another hospital. ^ In contrast, the present case concerns the

timeliness of a motion for a stay of proceedings brought in the course of criminal

proceedings, based on allegations of unlawful pre-surrender arrest and detention.

Thus, in the view of the Appeals Chamber, the relevant question to be answered is not

whether the Impugned Decision violated Mr Katanga's right of access to a court, but

rather whether it infringed his rights as conferred under article 67 (1) of the Statute to

a "fair hearing", thereby violating the requirement in article 64 (2) of the Statute.

(a) Adequate notice to Mr Katanga at the trial phase

57. Mr Katanga argues that, even during the trial phase, he had no clear notice of

the time limit for the filing of the Defence Motion and that the Trial Chamber violated

the principle of legality when it concluded that the Defence Motion was filed too

late.'"^

58. The Appeals Chamber recalls that, as stated above, the Trial Chamber did not

apply a time limit. Rather, in the exercise of its discretion, it considered whether in the

103

104 Document in Support of the Appeal, para. 8. See article 6 (1) of the (European) Convention for the Protection of Human Rights and Fundamental

Freedoms, 4 November 1950, as amended by Protocol 11,213 United Nations Treaty Series 2889. '^' ECtHR, Golder V. United Kingdom, "Judgment", 21 Febmary 1975, Application no. 4451/70. 105

' ^ ECtHR, Stubbings and other v. United Kingdom, "Judgment", 22 October 1996, Application nos 22083/93,22095/93. ^^ ECtHR, Prince Hans-Adam II of Lichtenstein v. Germany, "Judgment", 12 July 2001, Application no. 42527/98, para. 3. 108 ECtHR, Ashingdane v. United Kingdom, "Judgment", 28 May 1985, Application no. 8225/78. ^^ Document in Support of the Appeal, para. 18.

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specific circumstances of the case the Defence Motion was filed in a timely manner.

The Trial Chamber took into account Mr Katanga's failure to raise before it, prior to 1

June 2009, the issue of his allegedly unlawful pre-surrender arrest and detention in the

DRC. ^^ Thus, the question is not whether there was a time limit for the filing of the

Defence Motion, but whether Mr Katanga was adequately put on notice that he should

have raised the issue of his allegedly unlawful pre-surrender arrest and detention

earlier.

59. The Appeals Chamber notes that in its Order of 13 November 2008, the Trial

Chamber asked the parties and participants to submit their views on a number of

questions, covering a wide range of issues relevant to the conduct of the trial. In

paragraph 5 of that order, the Trial Chamber invited the parties to "add a second part

to their Written Response setting out the issues and observations which they would

deem relevant and on which they would like the Chamber to rule". These issues were

to be submitted by 24 November 2008 and to be discussed at the status conference

scheduled for 27 and 28 November 2008. The Order of 13 November 2008 was issued

pursuant to article 64 (2) and 64 (3) (a) of the Statute and regulation 28 (2) of the

Regulations of the Court. The first two provisions require the Trial Chamber to

regulate the proceedings in a fair and expeditious manner. Regulation 28 (2)

authorises a Chamber to order participants to address specific issues in written

submissions within a time limit specified by that Chamber. In the view of the Appeals

Chamber, it is clear that the purpose of the Order of 13 November 2008 was to ensure

that all issues would be resolved expeditiously before the commencement of the

hearing of the substantive case. Thus, any pending issues should have been brought to

the attention of the Chamber in the written responses of the parties to the Order of 13

November 2008 or, at the latest, at the status conference on 27 and 28 November

2008.

60. In the view of the Appeals Chamber, counsel for Mr Katanga was aware of the

purpose of the Order of 13 November 2008 and of the status conference. The Appeals

Chamber notes that at the status conference on 28 November 2008, Mr Katanga's

counsel stated:

^^ Impugned Decision, paras 59 et seq.

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In addition to the matters that are there, perhaps it's appropriate because I appreciate that a large part of this exercise is in order for you and your colleagues to see better the geography of the case ahead, and at least in this respect can I just raise one matter?

It is proposed on behalf of Mr. Katanga to make a submission in respect of Article 17, which deals with the admissibility of a case before the ICC. This is a matter that must be raised before or at the start of the trial.

Appreciating the significance of that [...] motion and its potential effect, of course, on the future conduct of the case, I can say that we undertake, [...] to have that motion before you this year. But I mention that because it will involve or may well involve a hearing at some time in the New Year, and you, Mr President, will be better positioned to know if that's necessary once you've seen the motion itself ^

61. Counsel for Mr Katanga thus found it necessary to notify the Trial Chamber at

that status conference of a possible admissibility challenge even though article 19 of

the Statute would allow him, at least in his view, to bring the challenge later, before

the hearing of the substantive case. Yet, he refrained from alerting the Trial Chamber

of a possible motion for a stay of proceedings based on his alleged unlawful arrest and

detention in the DRC although this was a matter that he had raised on several

occasions before the Pre-Trial Chamber and despite the fact that such a motion could

have a significant impact on the proceedings.

62. The Appeals Chamber therefore finds that the Order of 13 November 2008

sufficiently put Mr Katanga on notice that he had to raise the issue of the lawfulness

of his pre-surrender arrest and detention in his written observations due on 24

November 2008 or at the subsequent status conference.

(b) No violation of principle of proportionality

63. Mr Katanga submits that the Trial Chamber's decision not to consider the merits

of the Defence Motion lacked proportionality in light of the fundamental nature of the 119

issues raised in the Defence Motion.

64. The Appeals Chamber is not persuaded by these arguments. In its view, when

dismissing the Defence Motion, the Trial Chamber appropriately balanced Mr

Katanga's rights and the need for expeditiousness. Requiring the accused person to

' ICC-01/04-01/07-T-53-ENG, 28 November 2008, p. 49, lines 15-25 and p. 50, lines 1-5. ^^ Document in Support of the Appeal, para. 21.

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act in an expeditious manner is not in itself inconsistent with full respect for his rights.

In the view of the Appeals Chamber, in circumstances such as the present, the

accused's rights are given full respect so long as the accused person has been given

adequate opportunity to assert them. In the matter at hand, the Appeals Chamber finds

that Mr Katanga was given an adequate opportunity to raise his alleged unlawful

arrest and detention in the DRC. He did not, however, avail himself of this

opportunity.

65. The Appeals Chamber finds that in issuing the Order of 13 November 2008, the

Trial Chamber was discharging its duty to be fair to Mr Katanga, in the sense of

giving him a chance to raise, inter alia, the issue of his alleged unlawful pre-surrender

arrest and detention in the DRC. By inviting the parties to present relevant issues a

month after it was constituted, the Trial Chamber was seeking to ensure that the trial

proceeded fairly and expeditiously. In this context, the Appeal Chamber notes that Mr

Katanga informed the Trial Chamber at the status conference on 28 November 2008

of his intention to file an admissibility motion, but failed to mention to the Trial

Chamber the issue of the alleged unlawfulness of his pre-surrender arrest and

detention.

66. Mr Katanga submits furthermore that the Impugned Decision was

disproportionate because the Trial Chamber did not consider that he did not only seek

a stay of proceedings but also a finding of unlawful arrest and detention to enable him

"to make an application for compensation and submissions on sentence at the 1 1 o

appropriate time". The Appeals Chamber is not persuaded by this argument. As

stated above, Mr Katanga had an adequate and effective opportunity to present the

Defence Motion. It is irrelevant in this context that he sought several remedies. As the

Prosecutor correctly notes, since the Trial Chamber declined to consider the merits of

the Defence Motion, "any request for remedies deriving from the Defence Motion

was moot". "

67. The Appeals Chamber therefore finds that the Trial Chamber respected the

principle of proportionality in the present case, ensuring faimess to Mr Katanga and

the expeditiousness of the proceedings when concluding that Mr Katanga had not

^^ Defence Motion, para. 39; see Document in Support of the Appeal, para. 26. ^^ Response to Document in Support of the Appeal, para. 23

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furnished it with any convincing reasons why the Defence Motion was filed seven

months after the Order of 13 November 2008 and declining to consider its merits.

(c) Other opportunities to raise the issue at the trial phase

68. Mr Katanga argues that Trial Chamber should not have taken into account his

failure to raise the issue of his alleged unlawful pre-surrender arrest and detention

when his detention was reviewed under article 60 of the Statute and at the status

conference of 3 February 2009. In his submission, these opportunities to raise the

issue were irrelevant factors to the determination of the timeliness of the Defence

Motion. ^^

69. Regarding the reviews of his detention, Mr Katanga asserts that he was not

under any obligation to raise the issue of his alleged unlawful pre-surrender arrest and

detention at any of those reviews because they were related to his current and not his

pre-surrender detention. ^ The Appeals Chamber disagrees with this argument. The

Appeals Chamber recognises that Mr Katanga may not have been obliged to raise the

question of the lawfulness of his arrest and detention in the DRC when the Trial

Chamber reviewed his detention at the Court. The Appeals Chamber, nonetheless,

notes Mr Katanga's submissions in the Defence Motion, when he states:

In this case, there has been no clean break from the initial and continuing illegality of the detention. It will continue throughout the trial under conditions where the total disregard for the basic rights of the accused in arresting and detaining him and the use of this to enable his transfer to the Court cloud the legitimacy of his presence in the courtroom every additional day the accused is kept in detention. ^

70. He concludes:

It is therefore submitted that the trial will remain unfair as long as the continued detention formerly based on a total disregard for the rights of the accused persists, and justice administered by the court has been brought into such serious disrepute that a fair trial has in fact become an impossibility, regardless of the impartiality of the judges in the assessment of the evidence. ^

71. Thus, in the Defence Motion, Mr Katanga linked the detention in the DRC with

his detention at the Court. Given Mr Katanga's position that his alleged unlawful

^^ Document in Support of the Appeal, paras 34 and 35. ^ ^ Document in Support of the Appeal, para. 40. '* Defence Motion, para. 130. ^^ Defence Motion, para. 131.

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detention was ongoing, the Appeals Chamber considers it striking that he failed to

raise the alleged unlawfulness of his pre-surrender arrest and detention when his

detention at the Court was reviewed. In light of Mr Katanga's arguments in the

Defence Motion, the Appeals Chamber finds it reasonable for the Trial Chamber to

have expected Mr Katanga to utilise the reviews of his detention to raise the issue of

his alleged unlawful arrest and detention in the DRC, in order to put an end to what he

considered to be an ongoing illegal detention. Mr Katanga cannot now argue that the

reviews of the conditions of his detention had nothing to do with the issue at hand.

The Appeals Chamber is thus of the view that Mr Katanga's failure to raise the issue

of his allegedly unlawful arrest and detention in the DRC when his detention was

reviewed under article 60 of the Statute was a relevant factor for the Trial Chamber's

decision. The Trial Chamber did not err in this respect.

72. As to the status conference held on 3 February 2009, the Appeals Chamber

notes that it was intended to resolve any further outstanding issues before the trial,

following the status conferences held in November 2008, and to set a date for trial. ^^

The Trial Chamber thus gave the parties the chance to raise any issues of concem at

this status conference. In light of the purpose of the status conference, the Appeals

Chamber finds it reasonable for the Trial Chamber to have taken into account Mr

Katanga's failure to raise the issue of his allegedly unlawful arrest and detention in

the DRC on 3 February 2009, when determining whether there were convincing

reasons why he did not file the Defence Motion earlier.

73. In view of the foregoing, the Appeals Chamber sees no error in the Trial

Chamber's reliance on other opportunities afforded to Mr Katanga as one of the

relevant factors for its decision to reject the Defence Motion for not having been filed

in a timely manner.

(d) New information on 1 June 2009?

74. Mr Katanga submits that the information disclosed by the DRC at the hearing of

1 June 2009, namely that it had not conducted any investigations in respect of Mr

^^ ICC-01/04-01/07-T-56-ENG, 3 Febmary 2009, pp. 3-4.

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Katanga, was "decisive to [his] decision to file the motion"^^^ and that prior to that 191

date he had not received adequate information from the DRC.

75. In his response, the Prosecutor's avers that by March 2008 he had disclosed to

Mr Katanga all the relevant information on the proceedings against him in the

DRC. ^^ In this connection, the Appeals Chamber observes that while Mr Katanga

asserts that new information came to light at the hearing of 1 June 2009, he does not

substantiate this assertion in any meaningful way. His Document in Support of the

Appeal does not demonstrate to the Appeals Chamber how the information he

received at the hearing on 1 June 2009 was new to him or how, prior to that hearing,

the lack of information materially affected his ability to file the Defence Motion at an

earlier stage. The Appeals Chamber also notes that in the Impugned Decision, the

Trial Chamber stated that the information Mr Katanga relied on in the Defence 1 o o

Motion was largely available to him during the pre-trial phase. The Appeals

Chamber will defer to this finding of the Trial Chamber in the absence of any

concrete substantiation as to how the finding was erroneous. This is because the Trial

Chamber is better placed to assess the accuracy of Mr Katanga's assertions. The

Appeals Chamber discerns no error in the Trial Chamber's conclusion that Mr

Katanga relied on information that was already available to him during the pre-trial

phase and that he had received the necessary information as of 28 August 2008.

(e) Mr Katanga's defence strategy

76. Mr Katanga contends that the Trial Chamber did not give sufficient weight to

the discretion that a party should enjoy as to when to file a motion. " The Appeals

Chamber disagrees with this argument. The Appeals Chamber finds that, contrary to

these contentions, the Trial Chamber took this factor into consideration, but

concluded that it was outweighed by other relevant considerations. ^

77. The Appeals Chamber finds the Trial Chamber's treatment of Mr Katanga's

discretion as to when to file the Defence Motion was reasonable in the circumstances.

While a party has a discretion to organise and conduct his or her case in a manner that

' ^ Document in Support of the Appeal, para. 29. ' ^ Document in Support of the Appeal, para. 29. ^^ Response to Document in Support of the Appeal, para. 26. ' • Impugned Decision, para. 61. ' " Document in Support of the Appeal, para. 36. ' ^ Impugned Decision, para. 64.

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he or she deems appropriate, that discretion is not absolute. As Mr Katanga concedes,

the discretion may be circumscribed by the Statute, Rules of Procedure and Evidence

and the Regulations of the Court. ^^ Additionally, the Appeals Chamber must also

emphasise that the Trial Chamber's obligation to regulate the proceedings to ensure

that the trial is fair and expeditious under article 64 (2) of the Statute. ^^ Thus, while

the parties are allowed some leeway in deciding how to conduct their cases, this

cannot override the Trial Chamber's said obligation. The defence strategy must

respect both the procedural framework established by the Court's legal instmments

and the overall interests of the administration of justice.

78. As stated above, while Mr Katanga mentioned his intention to file a motion

challenging the admissibility of the case at the status conference in November 2008,

he did not do the same with regard to the issue of the lawfulness of his detention in

the DRC. Even if he was not ready in November 2008 to file a motion regarding his

alleged unlawful pre-surrender arrest and detention, his counsel could have informed

the Trial Chamber of this potential future motion. This would have allowed the Trial

Chamber to take the issue into consideration when planning the proceedings (e.g. by

extending the hearing on 1 June 2009 also to this issue). The same applies to the

status conference held on 3 Febmary 2009 to set the date for the trial and resolve all 128

pending preliminary issues.

79. It is not for the Appeals Chamber to speculate why Mr Katanga did not raise the

issue of the alleged unlawful pre-surrender arrest and detention in November 2008

and 3 Febmary 2009. The Appeals Chamber notes, however, that Mr Katanga, by

failing to do so for the sake of his strategy, took the risk that the Trial Chamber may

later decide to reject a motion for stay of proceedings based on these facts. In that

sense, Mr Katanga's decision cannot be said to have been reasonable. The Appeals

^ ^ Document in Support of the Appeal, para. 37. ^ ^ See for e.g., ICTR, Appeals Chamber, Leonidas Nshogoza v. Prosecutor, "Decision on Appeal Conceming Sanctions", 26 June 2006, ICTR-2007-91-A, paras 7-8. In this case, the Trial Chamber had imposed a pecuniary sanction on counsel for the Defence for flouting the Chamber's order to shorten her witness list. On appeal against this decision, the Appeals Chamber found the penalty to be impermissible, but did not question the Trial Chamber's power to request that counsel reduce his witness list. ^ ^ At that status conference, counsel for Mr Katanga stated: "[...] I am aware that a principal objective of you, Mr President and fellow Judges this aftemoon is to, as it were, feel the pulse of this case in order to better assess a practical [...] date for trial". See ICC-01/04-01/07-T-56-ENG, 3 Febmary 2009, p. 50, lines 12-15.

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Chamber sees merit in the Trial Chamber's conclusion that strategic reasons in

themselves could not justify the untimely filing of the motion. ^

80. The Appeals Chamber therefore finds no fault in the Trial Chamber's treatment

of Mr Katanga's strategy in this case. The Trial Chamber properly weighed Mr

Katanga's discretion to determine his strategy against the Trial Chamber's duty to

ensure the fair and expeditious conduct of the trial and considered it appropriate to

reject the Defence Motion.

(f) Mr Ngudjolo Chui's rights

81. Mr Katanga also takes issue with the Trial Chamber's reference in the

Impugned Decision to its over-all duty "to ensure that Mathieu Ngudjolo's right to be 1 '^O

tried without undue delay is also respected". He submits that irrespective of

whether he was being tried jointly or separately, his rights must be respected. As such,

any possible delay resulting from applications by co-accused is relevant for a decision

to join two cases, "but is not a matter which should lead to an accused having time

limits for the exercise of his rights which vary from those accused in other single

trials". ^

82. The question to be determined is whether Mr Ngudjolo Chui's right to be tried

expeditiously was taken into account in the Impugned Decision and, if so, whether the

Trial Chamber's consideration of Mr Ngudjolo Chui's rights unfairly compromised

Mr Katanga's rights.

83. The Appeals Chamber acknowledges that the Trial Chamber's reference to Mr

Ngudjolo Chui's rights may ex facie give the impression that it considered this factor

when deciding the case. The Appeals Chamber, nevertheless, takes the view that

reference to Mr Ngudjolo Chui's rights is in itself not improper, given that the trial is

a joint one. It would have been improper if the Trial Chamber relied on Mr Ngudjolo

Chui's rights at the expense of Mr Katanga's rights. However, in the view of the

Appeals Chamber, the Trial Chamber's analysis shows that this was not the case. The

reference to Mr Ngudjolo Chui's rights did not in any way affect the Trial Chamber's

conclusions as to the timeliness of the Defence Motion. In the Impugned Decision, the

^ ^ Impugned Decision, para. 64 ^^ Impugned Decision, para. 42. ^^ Document in Support of the Appeal, para. 41.

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Trial Chamber focused on the opportunities that Mr Katanga had had to file his

motion and on the reasons why it was not convinced that the late filing of the motion

was justified. The Trial Chamber denied the Defence Motion because Mr Katanga did

not raise his alleged unlawful pre-surrender arrest and detention at the appropriate

time, and not because of Mr Ngudjolo Chui's rights.

84. On this basis, the Appeals Chamber finds that in the circumstances of this case,

the reference to Mr Ngudjolo Chui's right to be tried without undue delay was not a

factor that was considered to the detriment of Mr Katanga's rights.

5. Conclusion

85. As stated above, the Appeals Chamber will not interfere with a discretionary

decision of another Chamber unless that decision is vitiated by a legal error, a factual

error or a procedural error, and only if the error materially affected the decision. For

the above reasons, the Appeals Chamber has discerned no error that justifies

interference with the Impugned Decision.

V. APPROPRIATE RELIEF

86. On an appeal pursuant to article 82 (1) (d) of the Statute, the Appeals Chamber

may confirm, reverse or amend the decision appealed (rule 158 (1) of the Rules of

Procedure and Evidence). In the present case, the Appeals Chamber has not identified

any error in the Impugned Decision. It is therefore appropriate to confirm that

decision and to dismiss the appeal.

The dissenting opinion of Judge Erkki Kourula and Judge Ekaterina Trendafilova will

be filed shortly.

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

^^-^Uo Judge Daniel David Ntanda Nsereko

Presiding Judge

Dated this 12th day of July 2010

At The Hague, The Netherlands

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Cour Péinale l i i teroat ionale

iBiterûatîooal Criminal Court

• I P P

(m)

Original: English No. ICC-01/04-01/07 OA 10 Date: 28 July 2010

THE APPEALS CHAMBER

Before: Judge Daniel David Ntanda Nsereko, Presiding Judge Judge Sang-Hyun Song Judge Erkki Kourula Judge Ekaterina Trendafilova Judge Joyce Aluoch

SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO

IN THE CASE OF THE PROSECUTOR v. GERMAIN KATANGA and MATHIEU NGUDJOLO CHUI

Public document

Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled "Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings"

Dissenting Opinion of Judge Erkki Kourula and Judge Ekaterina Trendafilova

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Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor Counsel for the Defence Ms Fatou Bensouda, Deputy Prosecutor Mr David Hooper Mr Fabricio Guariglia Mr Andreas O'Shea

REGISTRY Registrar Ms Silvana Arbia

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Dissenting Opinion of Judge Erkki Kourula and Judge Ekaterina Trendafilova

INTRODUCTION

1. We agree with the conclusions on the preliminary issues addressed in

paragraphs 10 to 15 of the "Judgment on the appeal of Mr Katanga against the

decision of Trial Chamber II of 20 November 2009 entitled 'Decision on the Motion

of the Defence for Germain Katanga for a Declaration on Unlawful Detention and

Stay of Proceedings'" dated 12 July 2010^ (hereinafter: "Majority Judgment").

2. However, we disagree with the Majority Judgment in upholding the "Decision

on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful

Detention and Stay of Proceedings"^ (hereinafter: "Impugned Decision"). As a result

of the errors we have found, we would reverse the Impugned Decision and remit the

matter to the Trial Chamber to issue a new decision on the "Defence motion for a

declaration on unlawful detention and stay of proceedings"" (hereinafter: "Defence

Motion"). The reasons for this dissent are set out below.

3. In deciding to confirm the Impugned Decision, the Majority reached the

following conclusions: the Trial Chamber did not err in law in relation to the timing in

general of motions alleging illegal pre-surrender arrest and detention and seeking a

stay of proceedings; there was no retroactive application of a time limit; and there was

no error in the Trial Chamber's assessment of the facts and circumstances of this case.

4. We cannot agree with these conclusions. In our view, the Trial Chamber erred

both as to the timing of motions alleging illegal pre-surrender arrest and detention

(and seeking a stay of the proceedings) and in the exercise of its discretion. It also

erred when it applied a time limit retroactively. As a result, the Trial Chamber erred in

not entertaining the Defence Motion on its merits, to the detriment of Mr Katanga.

This dissent follows the overall structure of the Majority Judgment and is divided into

five parts.

^ ICC-01/04-01/07-2259. ^ ICC-01/04-01/07-1666-Conf-Exp-tENG, 20 November 2009. The public redacted version, ICC-01/04-01/07-1666-Red-tENG, is dated 3 December 2009. ^ ICC-01/04-01/07-1258-Conf-Exp, filed on 30 June 2009. A public redacted version was filed on 2 July 2009 as ICC-01/04-01/07-1263.

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5. In Part I, the dissent makes some preliminary remarks. In Part II, the dissent

considers the issue of the requirement laid down by the Trial Chamber for the first

time in the Impugned Decision, namely that motions alleging unlawful pre-surrender

arrest and detention (and seeking a stay of the proceedings) must be filed at the pre

trial stage. It concludes that this requirement, as such, has no legal basis. The dissent

also notes that this requirement was fiirther developed in paragraph 62 of the

Impugned Decision in such a way that the paragraph contradicted the requirement

earlier established by the Trial Chamber.

6. In Part III, the dissent considers whether the findings made in relation to the

requirement were applied retroactively to the Defence Motion. It concludes that they

were and that in doing so the Trial Chamber again erred.

7. In Part IV, the dissent addresses the Trial Chamber's exercise of discretion

under article 64 (2) of the Statute (hereinafter, provisions of the Statute are referred to

as: "article"). It finds that the Trial Chamber failed to properly balance the factors

contained in that provision, in particular those of expeditiousness and Mr Katanga's

right to a fair trial. It finds that the Trial Chamber did not take into account the need

for adequate notice and the fundamental nature of the right that Mr Katanga was

asserting, in addition to several other factors, including the stage of the proceedings at

the time of filing of the Defence Motion (the preparatory phase) and Mr Katanga's

possible strategy. The dissent also finds that the Trial Chamber failed to properly

assess all of the relevant facts of this case. It concludes that a proper consideration of

all of these factors would have led the Trial Chamber to rule on the merits of the

Defence Motion. In Part V, the dissent summarises its overall conclusions.

I. PRELIMINARY REMARKS

A. First Preliminary Remark

8. The first preliminary remark relates to the issue on appeal. The Defence Motion

contained two clear requests in the 'relief sought': first, to "(1) FIND violations of the

rights of the accused relating to his prior detention; thus enabling the Defence to make

an application for compensation and submissions on sentence at the appropriate

time;" and second, to "(2) ORDER a stay in the proceedings against Germain Katanga

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or termination thereof'."^ Notably, the Impugned Decision referred sometimes to the

issue of unlawfulness of detention in a general sense,^ while on other occasions

expressly linked unlawfiil detention to a request for a stay of the proceedings.^

Although the Trial Chamber ultimately dismissed the Defence Motion,^ it did not

refer directly to the issues of compensation and mitigation of sentence in its analysis

and findings.^ In granting leave to appeal, the Trial Chamber spoke more generally

about unlawful detention without linking it to any remedy.^

9. The Majority Judgment, pointedly, links the issue of unlawfulness to the request

for a stay of the proceedings indeed referring solely to e.g. "motions alleging unlawful

arrest and detention of a suspect prior to his or her surrender to the Court and seeking

a stay of proceedings".^^ In doing so, it appears that the Majority made a connection

between the request for a stay of proceedings and unlawful pre-surrender arrest and

detention, making it easier to reach the conclusion that such motions should in

principle be filed at the pre-trial stage. However, it ignores the fact that, as stated

above, Mr Katanga also made requests concerning compensation and mitigation of

sentence.^

10. The issue before the Appeals Chamber, in the view of the dissent, was the

dismissal of the request for a finding of unlawful detention, irrespecfive of the remedy

sought in relation thereto. However, since this dissent is from the Majority Judgment,

we cannot but follow its approach to a certain extent and express our disagreement

with its findings in relation to the request relating to unlawful detention and its link to

stay of proceedings.

' Defence Motion, p. 39. ^ See e.g. Impugned Decision, para. 40. ^ See e.g. Impugned Decision, para. 38. ^ Impugned Decision, para. 23. ^ Impugned Decision, paras 34-67. The Trial Chamber simply notes Mr Katanga's requests relating to compensation and mitigation. See Impugned Decision, paras 22 and 35. ^ "Decision on the 'Defence Application for Leave to Appeal the Trial Chamber's Décision relative à la requête de la Défense de Germain Katanga en illégalité de la détention et en suspension de la procédure''', 11 February 2010, ICC-01/04-01/07-1859, para. 18 ( Trial Chamber refering to, inter alia, "the issue of challenges to the lawfulness of the Accused's arrest and detention". In the "Defence Application for Leave to Appeal the Trial Chamber's Décision relative à la requête de la Défense de Germain Katanga en illégalité de la détention et en suspension de la procédure", 30 November 2009, ICC-01/04-01/07-1691, para. 2 (reclassified as public by way of an instruction of 1 February 2010) (hereinafter: "Application for Leave to Appeal"), Mr Katanga asserts that the Trial Chamber erred in dismissing the Defence motion "in its entirety". ° Majority Judgment paras 32, 39, and 40; see also p. 15 (title).

' ' Defence Motion, inter alia, p. 39.

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B, Second Preliminary Remark

11. The Trial Chamber dismissed the Defence Motion on the basis that it was filed

too late and found that Mr Katanga "ha[d] not advanced any convincing reasons to

justify the filing of the [Defence] Motion at such an advanced stage in the

proceedings."^^ The Trial Chamber gave no indication, prior to issuance of the

Impugned Decision, that timing was an issue and that Mr Katanga's filing was

potentially too late. Nor did the Trial Chamber advise the parties that it was the only

determinative issue in its disposal of the motion. The issue of timing was also not

raised by either Mr Katanga or the Prosecutor in their filings prior to issuance of the

Impugned Decision which were instead focused on the merits. ^ In this sense, Mr

Katanga referred only to why he had been persuaded to file the Defence Motion when

he did. " Otherwise, he did not make submissions as to why the Defence Motion

should be accepted as being on time. After the filing of the Defence Motion, the Trial

Chamber, in our view, gave the impression that it intended to consider the Defence

Motion's merits (see further below), as a result of which, Mr Katanga, presumably,

did not see the need to request the opportunity to make submissions on timing. The

consequence of all of this was that the Trial Chamber did not provide Mr Katanga

with the opportunity to advance "convincing reasons"^^ as to why the Defence Motion

was filed on time.

12. Although "there is no obligation upon [a Chamber] to share every conceivable

aspect of the decision-making process with the parties before arriving at a decision", ^

in this particular case, the Trial Chamber should have given notice of this issue, which

it considered to be the only one determinative in its disposition of the Defence

Motion. Thus, it should have provided the parties, and in particular Mr Katanga, with

the opportunity to make submissions thereon. This approach also finds support in the

^ Impugned Decision, para. 61. ^ See generally Defence Motion; "Prosecution Response to Defence motion for a declaration on unlawful detention and stay of proceedings", 17 August 2009, ICC-01/04-01/07-1381. ^ Defence Motion, para. 3. ' Impugned Decision, para. 61. ^ Prosecutor v. Germain Katanga, Appeals Chamber, "Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entitled 'First Decision on the Prosecution Request for Authorisation to Redact Witness Statements'", 13 May 2008, ICC-01/04-01/07-475, (OA), 13 May 2008, para. 108.

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jurisprudence of the European Court of Justice^^ and the European Court of Human

Rights (hereinafter: "ECtHR"), the latter of which has a line of cases indicating that

part of the right to adversarial proceedings is that parties must be heard when the

Chamber decides an issue on grounds identified on its own motion. ^ However,

despite this error, the parties have now had the chance to make submissions on this

issue before the Appeals Chamber, and therefore, we find it essential to address the

errors made by both the Trial Chamber and the Majority Judgment.

II. MAJORITY JUDGMENT'S FINDING THAT THERE WAS NO LEGAL ERROR AS TO THE TIMING OF MOTIONS ALLEGING ILLEGAL PRE-SURRENDER ARREST AND DETENTION AND SEEKING A STAY OF PROCEEDINGS

A, Summary of Impugned Decision and Majority Judgment

13. In the opening paragraph of the Impugned Decision, the Trial Chamber stated

that it was acting pursuant to articles 64 and 67, rule 122 of the Rules of Procedure

and Evidence (hereinafter, provisions of the Rules of Procedure and Evidence are

referred to as: "rule") and article 24 of the Code of Professional Conduct for counsel.

In addressing the Defence Motion, the Trial Chamber first noted, based on previous

Appeals Chamber jurisprudence, that the motion was of a sui generis nature.^^ It

decided that, before it could address the substantive arguments set out in the Defence

Motion, it "must satisfy itself that the Motion is admissible."^^ It stated that "[i]t must,

in particular, determine whether the provisions of the Statute, the Rules and other

relevant provisions authorise a party to introduce a motion for a declaration on

unlawful detention and stay of proceedings following the confirmation of charges and

at the current stage of the proceedings."^^ It went on to state the following (under the

' European Court of Justice, Grand Chamber, Commission v. Ireland and others, "Judgment", 2 December 2009, Case C-89/08 P, para. 54 ("A court must itself observe the rule that the parties should be heard, in particular, when it decides a dispute on a ground it has identified of its own motion"). ^ See ECtHR, Skondrianos v. Greece, "Judgment", 18 December 2003, application nos 63000/00, 74291/01 and 74292/01, paras 29-32; ECtHR, Case of Clinique des Acacias and Others v. France, "Judgment", 13 October 2005, application nos 65399/01, 65406/01, 65405/01 et 65407/01, paras 36-43; ECtHR, Prikyan and Angelova v. Bulgaria, "Judgment", 16 February 2006, application no. 44624/98; ECtHR, Cimolino v. Italy, "Judgment", 22 September 2009, application no. 12532/05, paras 47-51. It has been argued that Skondrianos "goes a considerable way" towards imposing an obligation on the judiciary to assist applicants by letting them know in advance where the court is aiming when it rejects an appeal. S. Trechsel, Human Rights in Criminal Proceedings (Oxford University Press, 2005), p. 94 (hereinafter: "Trechsel"). ^ Impugned Decision, para. 36.

^ Impugned Decision, para. 38. ^ Impugned Decision, para. 38.

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heading "Stage at which a motion for a declaration on unlawful detention must be

submitted"):

39. The Chamber considers that a challenge to the unlawfulness of the arrest and detention of an accused, in particular where such a challenge is accompanied by an application to stay or terminate the proceedings, must be submitted in the initial phase of the proceedings.

40. It is in the interests of all, and primarily of the suspects who have been deprived of their liberty, that the issue of the possible unlawfulness of their detention be raised and addressed as early as possible during the pre-trial phase. Such a requirement is justified by the need to settle at the start of the proceedings any issue that could delay or obstruct the fair conduct thereof

41. In this regard, the Chamber notes, for example, that under article 19 of the Statute challenges to admissibility or jurisdiction must be made at the earliest opportunity, so as to avoid obstructing or delaying the proceedings. Furthermore, under rule 122(2) of the Rules, if during the confirmation hearing the Pre-Trial Chamber is called upon to rule on such a challenge, it must ensure compliance with the provisions on expeditiousness expressly prescribed by rule 58 of the Rules. Moreover, paragraphs 3 and 4 of rule 122 further provide that any objection or observation concerning an issue related to the proper conduct of the proceedings prior to the confirmation hearing must be raised at the start of the hearing, failing which it will no longer be possible to do so subsequently.

42. Under article 64(2) of the Statute, the Trial Chamber must ensure that the trial is fair and expeditious and conducted with full respect for the rights of the accused. Moreover, in the instant case, which involves two accused persons, the Chamber must ensure that Mathieu Ngudjolo's right to be tried without undue delay is also respected [citations omitted].

14. The Trial Chamber then went on to consider what occurred at the pre-trial phase

of the proceedings.^^ In doing so, it outlined the history of particular filings and

hearings before the Pre-Trial Chamber. It concluded that Mr Katanga did raise the

issue of his unlawful detention before the Pre-Trial Chamber but that ultimately he

did not file a motion. It stated:

48. Yet, for the reasons set out above, the Chamber considers that such a motion should have been introduced during the pre-trial phase and addressed at that stage.

15. It went on to state:

49. The Chamber is nevertheless mindful that the position adopted by the Pre-Trial Chamber may have led the Defence for the Accused to believe that it

^ Impugned Decision, paras 43-50.

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was authorized to defer the filing of its motion and postpone it until after the decision on the confirmation of charges.

50. It therefore remains to be determined whether the Chamber itself was officially seized of such a motion, and in due time.

16. Later in the Impugned Decision, in its findings, the Trial Chamber stated:

62. When a party wishes to raise an issue, particularly if the issue might have repercussions on the conduct of the proceedings, it is incumbent on that party to submit the matter to the judges by motion and in a timely manner. If the filing of such a motion is contingent on obtaining information or further documents, the party in question must inform the Chamber of its need to receive such information or documents before submitting its motion. Moreover, if the objection has already been raised before the Pre-Trial Chamber, and if the party wishes to take it up again before the Trial Chamber, then it is obliged to bring it to the latter's attention, promptly and in accordance with the appropriate procedure.

17. The Majority Judgment cited paragraphs 39, 40 and 48 of the Impugned

Decision providing that motions alleging unlawful detention (and seeking a stay of the

proceedings) must be filed at the pre-trial stage." ^ Referring to the fact that the Trial

Chamber went on to consider the opportunities available to Mr Katanga to file his

motion at the trial phase, it found that "in so doing, [the Trial Chamber] recognised

the need for flexibility in the application of the principle it had identified." In this

sense, for the first time, it characterised what the Trial Chamber found in paragraphs

39, 40 and 48, as a "principle".^"^ The Majority considered that it "must [...] determine

whether the principle that the Trial Chamber identified was correct [.. .]".^^

18. It went on to find that there are no express time limits for motions alleging

unlawful pre-surrender arrest and detention and seeking a stay of proceedings and it

concluded that "the approach" adopted by the Trial Chamber was correct.^^ The

Majority maintained "that the principle identified by the Trial Chamber is based,

firstly, on considerations of efficiency and judicial economy".^^ It observed that:

[i]t is consistent with the role of the Pre-Trial Chamber and the purpose of the confirmation proceedings that, in the absence of any provision to the contrary, motions alleging illegal pre-surrender arrest and detention and seeking a stay of

^ Majority Judgment, paras 36-37. " Majority Judgment, para. 37. See also paras 38, 40. ^ Majority Judgment, para. 38. ^ Majority Judgment, para. 40. ^ Majority Judgment, para. 40.

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proceedings should be brought during the pre-trial phase of the proceedings. If such motions are made at an unduly late stage of the proceedings, it would turn the Court's attention away from the trial proper and delay the hearing of the substantive case.^^

19. The Majority stated that "[e]xpeditiousness is thus an independent and

important value in the Statute to ensure the proper administration of justice, and is

therefore more than just a component of the fair trial rights of the accused. For this

reason, article 64 (2) enjoins the Trial Chamber to ensure that the trial is both fair and

expeditious" (citation omitted).^^ Finally, the Majority stated "that the principle

allows for fiexibility."^^ It found that it "thus strikes a fair balance between the rights -3 1

of the accused person and the requirement of expeditiousness."

B. Analysis

20. The Trial Chamber, in reaching its findings, referred to previous Appeals

Chamber jurisprudence which, it stated, characterised a motion similar to the Defence

Motion as sui generis?^ Derived from a general idea as to expeditiousness, giving the

example of article 19, and referring to rules 122 and 58, and article 64 (2), the Trial

Chamber came up with a "requirement", referred to by the Majority as a "principle",

that motions alleging unlawful detention (and seeking a stay of the proceedings)

should be filed in the pre-trial phase. The Trial Chamber developed on that

requirement later in the Impugned Decision.^^

21. We agree that motions alleging unlawful pre-surrender arrest and detention and

seeking a stay of proceedings are not regulated by the Court's legal texts and thus

may, as was previously found by the Appeals Chamber, be deemed sui generis?^ We

also agree that proceedings at the Court must be expeditious (a factor to be explored

further below) and that there is some logic m preferring that motions seeking a stay of

proceedings based on unlawful pre-surrender arrest and detention be filed at the pre-

^ Majority Judgment, para. 41. ^ Majority Judgment, para. 47. ° Majority Judgment, para. 48.

^ Majority Judgment, para. 50. ^ Impugned Decision, para. 36. ^ Impugned Decision, para. 62. ^ Majority Judgment, para. 39, referring to Prosecutor v. Thomas Lubanga Dyilo, "Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision of the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006", 14 December 2006, ICC-01/04-01/06-772, (OA 4), para. 24.

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trial stage.^^ However, to convert this preference into a requirement, as did the

Impugned Decision, or to find that it constitutes diprinciple, as did the Majority, is, in

our view, an error.

22. The Trial Chamber referred to the sui generis nature of a similar application, to

several provisions in the Court's texts and generally to the expeditiousness of

proceedings. It did so without clearly specifying the legal basis and how it justified

the establishment of the requirement. Some remarks in this regard are in order.

23. For example, the Trial Chamber referred to rule 122 in the opening paragraph of

the Impugned Decision and sub-rules (3) and (4) ofthat rule in paragraph 41, in

particular stating that those sub-rules "provide that any objection or observation

concerning an issue related to the proper conduct of the proceedings prior to the

confirmation hearing must be raised at the start of the hearing, failing which it will no

longer be possible to do so subsequently."^^ Although one could argue that these sub-

rules regulate the timing of the Defence Motion, and that the Trial Chamber

considered this to be the case, the Trial Chamber did not clearly state that they were

the basis for the establishment of the requirement, referring also, as stated above, to

other elements. The result is, that the Trial Chamber seems to have simply referred to

them, with article 19 (see below), as examples of provisions that regulate other

procedural matters at the pre-trial phase. This conclusion finds support in the fact that

the Trial Chamber referred to the Appeals Chamber's jurisprudence as endorsing the

sui generis nature of such motions. Because the Trial Chamber made this reference, it

becomes more difficult to conclude that it understood such motions to be regulated by

rule 122, rather than being of di sui generis nature (that is, "[o]f its own kind or class;

unique or peculiar""^^). However, the uncertainty created by reference to rule 122

remains.

24. The Trial Chamber also referred to article 64 in the opening paragraph of the

Impugned Decision and article 64 (2) in paragraph 42 of the Impugned Decision. The

Majority Judgment characterised the Impugned Decision as one which was issued

^ See generally. Majority Judgment, paras 40-49. ^ Impugned Decision, para. 41. ' B. Garner (ed.). Black's Law Dictionary (West Publishing Co., 8 '' ed., 2004) p. 1475.

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pursuant to the discretionary powers of the Trial Chamber. ^ In our view, if the Trial

Chamber established this requirement based on its discretionary powers, it in any

event erred for the reasons that are set out below.

25. The requirement that had been established was developed upon by the Trial

Chamber later in the Impugned Decision. In this respect, although the requirement did

not, in our view, seem to leave room for flexibility (such motions must be filed in the

pre-trial phase^^), paragraph 62 adds ambiguity and some contradiction. In particular,

the Trial Chamber stated in this paragraph, regarding motions generally, that, inter

alia, "if the objection has already been raised before the Pre-Trial Chamber, and if the

party wishes to take it up again before the Trial Chamber, then it is obliged to bring it

to the latter's attention, promptly and in accordance with the appropriate procedure"

(emphasis added)." ^ Consequently, it becomes unclear as to when the Trial Chamber

considered the Defence Motion should have been filed. This paragraph, despite the

rigidity found in earlier paragraphs (such motions must be filed in the pre-trial

phase" ), seems to suggest that there is some flexibility to the requirement and that

such motions could, in fact, be filed later, "again", as long as filed "promptly", which

is undefined, "and in accordance with the appropriate procedure", which is also

undefined." ^ Indeed, as argued by Mr Katanga, it was unclear to him when he was

expected to file the Defence Motion both before and after issuance of the Impugned

Decision." ^ The Majority Judgment disregarded paragraph 62, although it did

conclude that the Impugned Decision, for different reasons, left room for flexibility in

the application of the principle (as named by the Majority)." "

26. In the end, however, all of this, including reference to several provisions,

whether by example or not, simply adds to the ambiguity of the legal basis for the

Trial Chamber's findings. Aside from a general idea of expeditiousness of the

proceedings and reference to some provisions by way of example, the Trial Chamber

^ Majority Judgment, paras 33-34. ^ Impugned Decision, paras 39-40 ^ Impugned Decision, para. 62. ^ Impugned Decision, paras 39-40. ^ Impugned Decision, para. 62. "^ "Document in Support of the Defence Appeal of the Décision relative à la requête de la Défense de Germain Katanga en illégalité de détention et en suspension de la procédure", 25 February 2010, ICC-01/04-01/07-1916-Corr, para. 17 (hereinafter: "Document in Support of the Appeal"). ' Majority Judgment, paras 37, 48 and 49.

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did not state clearly on what basis it found the establishment of the requirement

possible.

27. Assuming that the Trial Chamber considered the Defence Motion to be of a sui

generis nature, it still established a requirement regulating its filing that was akin to a

statutory legal provision - something which is inconsistent with the very nature of a

sui generis motion. How it derived an idea as specific as dictating the stage of the

proceedings at which such a motion should be filed (that is, at the pre-trial phase)

based on some examples and a general idea of expeditiousness, remains unclear to

this dissent.

28. The Trial Chamber also established a requirement applicable to a phase of the

proceedings that takes place before the Pre-Trial Chamber, prior to the confirmation

of charges. It did this, albeit it is clear that this is a phase of the proceedings over

which the Trial Chamber has no mandate. In this regard, it is our view that Chambers

cannot act beyond the scope of the powers assigned to them.

29. Finally, we cannot agree with the Majority Judgment when it elevated what the

Trial Chamber defined as a "requiremenf ' to the level of a "principle" - a notion with

a different nature and scope. It is even more disturbing to contemplate the potential

impact of this shift in definition on future proceedings before the Court.

30. In the end, the basis and content of the Trial Chamber's conclusions are unclear,

unsubstantiated, and indeed contradictory. We therefore cannot accept the Majority

Judgment's finding that the Trial Chamber did not err.

III. RETROACTIVE APPLICATION

A. Summary of Impugned Decision and Majority Judgment

31. The Trial Chamber, for the first time in the Impugned Decision, established a

requirement that regulated when the Defence Motion should have been filed. It then

proceeded to apply that requirement, in the same decision, to that motion. In this

respect, having set out the course of events at the pre-trial phase, it "consider[ed] that

such a motion should have been introduced during the pre-trial phase and addressed at

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that stage."" ^ It went on to state that it was "nevertheless mindful that the position

adopted by the Pre-Trial Chamber may have led the Defence for the Accused to

believe that it was authorized to defer the filing of its motion and postpone it until

after the decision on the confirmation of charges". ^ As a result, it stated that it had to

"determine[] whether [it] itself was officially seized of such a motion, and in due

time", going on to consider the opportunities Mr Katanga had had to raise the motion

during the trial phase." ^

32. Having endorsed the Trial Chamber's requirement, labelling it a "principle", the

Majority Judgment considered whether the Trial Chamber applied that principle

retroactively." ^ It concluded that, because the Trial Chamber went on to consider what

occurred at the trial phase, it "did not retroactively apply the principle that motions

alleging pre-surrender unlawful arrest and detention should, as a general rule, be filed

at the pre-trial phase to the Defence Motion. Rather, it took a decision based on the

specific facts and circumstances of the case."" ^

B. Analysis

33. We disagree with the Majority Judgment's finding. The idea of applying a

subsequent legislation or law creating a crime or a certain prohibition to "any conduct

that precedes it in time" is a manifestation of the well recognised principle of legality,

which is also mirrored in the prohibition of retroactivity and nullum crimen, nullum

poena sine lege. ^ The principle finds wide recognition not only at the national level.

^ Impugned Decision, para. 48. "^ Impugned Decision, para. 49. "^ Impugned Decision, para. 50. ^ Majority Judgment, para. 51. "^ Majority Judgment, para. 51. ° See e.g. ECtHR, Grand Chamber, Streletz, Kessler and Krenz v. Germany, "Judgment", 22 March

2001, application nos. 34044/96, 35532/97 and 44801/98, 22 March 2001, para. 50; ECtHR, Grand Chamber, Achour v. France, "Judgment", 29 March 2006, application no. 67335/01, para. 41; ECtHR, Grand Chamber, Korbely v. Hungary, "Judgment", 19 September 2008, application no. 9174/02, para. 70; ECtHR, Grand Chamber, Kononov v. Latvia, "Judgment", 17 May 2010, application no. 36376/04, para. 185 ("Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused's disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty {nullum crimen, nulla poena sine lege) [...] It follows that an offence must be clearly defined in law. This requirement is satisfied where the individual can know from the wording of the relevant provision - and, if need be, with the assistance of the courts' interpretation of it and with informed legal advice - what acts and omissions will make him criminally liable. When speaking of 'law'. Article 7 alludes to the same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written and unwritten law and which implies qualitative requirements, notably those of accessibility and foreseeability").

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but also in various international and regional human rights instruments. ^ Although

this principle is related to the field of criminal law, it depicts an important principle

that is related to all legal fields, that no person may be admonished for behaviour

based on requirements of which he or she had no knowledge. In this regard, it is noted

that:

The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any action, should be able to know in advance what are the legal consequences that will fiow from it. Where those consequences are regulated by a statute the source ofthat knowledge is what the statute says. ^

34. In the context of the present case, the Trial Chamber did apply the requirement

it had established retroactively. The Trial Chamber erred in deciding that Mr Katanga

should have filed the Defence Motion at the pre-trial phase on the basis of a

requirement not envisaged by law and laid out by this Chamber for the first time in

the Impugned Decision. Mr Katanga was not on notice that he had to raise the matter

during the pre-trial proceedings and therefore did not act in accordance with this

requirement. As a result, he was admonished. ^ In our view, this was an error.

35. Importantly, when admonishing Mr Katanga for not filing his motion during the

pre-trial phase, the Trial Chamber, though it registered the fact "that the position

adopted by the Pre-Trial Chamber may have led the Defence for the Accused to

believe that it was authorised to defer the filing of its motion and postpone it until

after the decision on the confirmation of charges", " still did not give sufficient weight

to that fact. In such circumstances, the basis on which the Trial Chamber would

admonish Mr Katanga for what occurred during the pre-trial phase, when the

Chamber seised of the matter at that time had indicated to Mr Katanga that filing later

was permissible, seems inexplicable. Moreover, it should be noted that in applying the

^ See e.g. Universal Declaration of Human Rights, General Assembly, Resolution 217A (III) 12 December 1948, A/810, article 11 (2); International Covenant on Civil and Polifical Rights, 12 December 1966, 999 United Nations Treaty Series 171, article 15(1); Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, as amended by Protocol 14, 1 June 2010, 213 United Nafions Treaty Series 2889 (hereinafter: "European Convention") article 7 (1); and American Convention on Human Rights, OAS Treaty Series No. 36, 1144 United Nations Treaty Series 123, 22 November 1969, article 9. ^ United Kingdom, House of Lords, Black-Clawson Int. Ltd. v. Papierwerke Waldhof-Aschaffenburg, 5 March 1975, [1975] A.C. 591, p. 638. ^ Impugned Decision, para. 48. ^ Impugned Decision, para. 49.

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established requirement retroactively, a requirement applicable to the pre-trial phase,

Mr Katanga could not, even if so desired, correct his actions. This is because the

relevant phase of the proceedings, the pre-trial phase, had clearly ended.

36. We also consider that the Trial Chamber erred in developing on the requirement

established in the Impugned Decision by setting out its general approach to the

treatment of all motions, for the first time in paragraph 62 of the Impugned Decision,

and in applying that approach to the Defence Motion.^^ The Trial Chamber relied on

the policy set out in this paragraph when assessing whether Mr Katanga had filed the

Defence Motion on time. Aside from the fact that, as seen above, this paragraph

contradicts the inflexible established requirement in paragraphs 39 and 40, the Trial

Chamber had not advised Mr Katanga as to its content and, therefore, as to the Trial

Chamber's expectations.

37. In sum, the Trial Chamber erred in establishing a requirement that had no legal

basis in addition to developing on that requirement later in the same decision. It erred

in doing this for the first time in the Impugned Decision and in applying it

retroactively again in that same decision, to the Defence Motion.

IV. ERROR IN THE TRIAL CHAMBER'S EXERCISE OF DISCRETION IN DISMISSING THE DEFENCE MOTION

A. Summary of Impugned Decision and Majority Judgment 38. Having accepted that Mr Katanga was led to believe that he could bring the

Defence Motion before the Trial Chamber, the Trial Chamber proceeded to consider

whether it had been "officially seized" of that motion, "and in due time."^^ In

assessing the trial phase, it stated that "at no time did the Defence for Germain

Katanga raise with it the matter of the unlawfulness of the latter's detention, despite

having several opportunities to do so."^^ In particular, it considered events

surrounding two status conferences and "[o]bservations filed in relation to the review

of the Accused's continued detention."^^ It discounted Mr Katanga's arguments as to

^ E.g. Impugned Decision, paras 64-66. ^ Impugned Decision, para. 50. ^ Impugned Decision, para. 51. ^ Impugned Decision, p. 18 (heading ii)).

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new information being heard in court on 1 June 2009^ (hereinafter: "Hearing of 1

June 2009"), ^ stating that strategic reasons "cannot in themselves justify the late

filing of motions such as the one currently at issue."^^

39. The Trial Chamber in particular found that Mr Katanga had not raised the issue

between the transfer of the case to the Trial Chamber and the Hearing of 1 June 2009,

and that "the reasons put forward by the Defence cannot justify its inaction in this

regard."^^ It considered that "[b]y not filing its Motion until seven months after the

initial invitation to the Defence to submit to the Chamber the relevant issues on which

it wished the latter to rule, the Defence has not met the aforementioned obligation in

relation to expeditiousness, despite the many opportunities subsequently provided to

it." ^ It found that "having regard to all the circumstances of the case and in the

absence of any convincing explanation from the Defence for Germain Katanga, the

Chamber considers that the Motion was filed at too advanced a stage in the

proceedings and therefore finds it inadmissible." '*

40. The Majority stated that, "having concluded that the Trial Chamber was correct

in extending its analysis to the trial phase of the proceedings, [it] must next consider

whether the Trial Chamber correctly exercised its discretion when it held that the

Defence Motion was filed too late."^^ It "observe[d] that in the circumstances of the

present case, the Trial Chamber's power to determine the timeliness of a motion

alleging unlawful pre-surrender arrest and detention and seeking a stay of the

proceedings during the trial phase derives from article 64 (2) of the Statute."^^ It

found that "the Trial Chamber ha[d] the power to regulate the conduct of the parties

and participants so as to ensure, among other considerations, that such conduct does

not cause undue delay to the proceedings."^^ It considered that "a party to a

proceeding who claims to have an enforceable right must exercise due diligence in

asserting such a righf' ^ and that, agreeing with the Trial Chamber, "parties must

^ ICC-01/04-01/07-T-65-ENG. ° Impugned Decision, paras 60-61.

^ Impugned Decision, para. 64. ^ Impugned Decision, para. 64. ^ Impugned Decision, para. 65. " Impugned Decision, para. 66.

^ Majority Judgment, para. 57. ^ Majority Judgment, para. 53. ^ Majority Judgment, para. 53. ^ Majority Judgment, para. 54.

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submit motions that have repercussions on the conduct of the trial in a 'timely

manner'". The Majority "interprets 'timely manner' to mean that the parties must act

within a reasonable time. However, what is reasonable or unreasonable in relation to

time always turns on all the circumstances of the case, including the conduct of the

person seeking the Court's assistance."^^

41. The Majority then considered the arguments raised by Mr Katanga, finding that

he had adequate notice by virtue of the "Order Instructing the Participants and the

Registry to Respond to Questions of Trial Chamber II for the Purpose of the Status

Conference (article 64(3)(a) of the Statute)"^^ (hereinafter: "Order of 13 November

2008"), that there was no violation of the principle of proportionality,'' and that the

Trial Chamber did not err in relying "on other opportunities afforded to Mr Katanga

as one of the relevant factors for its decision to reject the Defence Motion for not

having been filed in a timely manner". ^ It also concluded that the Trial Chamber's

finding as to whether Mr Katanga was given new information during the Hearing of 1

June 2009 should be accepted, ^ that Mr Katanga's strategy was properly considered "*

and that the reference to Mr Ngudjolo Chui's "right to be tried without undue delay

was not a factor that was considered to the detriment of Mr Katanga's rights."^^

B, Analysis

42. We agree, in principle, that as found by the Majority, "in the circumstances of

the present case, the Trial Chamber's power to determine the timeliness of a motion

alleging unlawful pre-surrender arrest and detention and seeking a stay of the

proceedings during the trial phase derives from article 64 (2) of the Statute."^^ From

this perspective, the Trial Chamber is empowered to regulate its own proceedings

under that provision. However, the exercise of its powers must be carried out in

accordance with internationally recognised human rights standards. It follows that we

disagree with the Majority Judgment's conclusion that the Trial Chamber committed

no error in the exercise of its discretion. In particular, we cannot agree with the weight

^ Majority Judgment, para. 54. ° ICC-01/04-01/07-747-tENG, 13 November 2008.

^ Majority Judgment, paras 63 - 67. ^ Majority Judgment, para.73. ^ Majority Judgment, paras 74-75. ^ Majority Judgment, paras 76-80. ^ Majority Judgment, para. 84. ^ Majority Judgment, para. 53.

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placed in the Impugned Decision (and by the Majority) on the need for an expeditious

trial at the expense of the rights of Mr Katanga and the need to guarantee him a fair

trial.

43. As was also argued in Part II above, the Impugned Decision provides little

insight into the factors that the Trial Chamber took into account when reaching its

decision to dismiss the Defence Motion. Although the Majority Judgment considered

that the Trial Chamber was exercising its powers under article 64 (2), ^ in fact the

Impugned Decision itself is somewhat obscure in this respect. Save for a reference to

articles 64 and 67 in the opening paragraph^^ and a passing reference to article 64 (2)

in paragraph 42, no explicit consideration of the factors set out in that provision may

be found, in particular the important obligation of guaranteeing "full respect for the

rights of the accused". Indeed, the bulk of the elements contained within article 64 (2)

was disregarded. The only common thread running throughout the Impugned

Decision is that of expeditiousness and the opportunities that Mr Katanga had to raise

this issue before the Trial Chamber.

44. However, if article 64 (2) is the basis for the Impugned Decision, which we do

not challenge, then clearly all the factors contained within that provision should have

been considered. In this respect, a Trial Chamber "shall ensure that a trial is fair and

expeditious and is conducted with full respect for the rights of the accused and due

regard for the protection of victims and witnesses." It is required to take into account

the different considerations and competing interests contained within this provision.

That this is mandatory is clear through use of the word "shall". However, article 64

(2) also imports an element of discretion in relation to its implementation. But, in

taking a discretionary decision, the Trial Chamber must ensure that it carefully weighs

all the enumerated factors. In addition, and as has been emphasised many times by the

Appeals Chamber, the Trial Chamber must ensure that, as required by article 21 (3), it

^ Majority Judgment, paras 17, 33, 53 and 77. ^ The opening paragraph stated that the Trial Chamber, "acting pursuant to articles 64 and 67 of the Rome Statute ("the Statute"), rule 122 of the Rules of Procedure and Evidence ("the Rules") and article 24 of the Code of Professional Conduct of counsel, decides as follows:". See Impugned Decision, p. 3.

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both interprets and applies the law (exercise of its discretion in this context)

consistently with internationally recognized human rights. ^

45. In addressing article 64 (2), the Majority Judgment primarily weighed two

competing interests: expeditiousness and the right to a fair hearing, according, in our

view, paramount importance to the former. The Impugned Decision also relied

primarily on expeditiousness in order to reach its conclusions. Moreover, addressing

Mr Katanga's arguments as to access to a court, the Majority Judgment found that

"the relevant question to be answered is not whether the Impugned Decision violated

Mr Katanga's right of access to a court, but rather whether it infringed his rights as

confirmed under article 67 (1) of the Statute to a 'fair hearing', thereby violating the

requirement in article 64 (2) of the Statute."^^ In this regard, we agree with the

Majority Judgment that what is at stake is whether Mr Katanga's right to a fair

hearing was respected. In addressing whether it was respected, the Majority dealt with

six issues, concluding that there was no violation of Mr Katanga's rights. ^ Having

considered those issues, we find that the Majority erred. Accordingly, we find it

necessary to first address, the question of expeditiousness, followed by, inter alia, the

six points addressed by the Majority, in order to demonstrate, against the backdrop of

the facts of the case, that Mr Katanga's right to a fair hearing in relation to the

Defence Motion was indeed violated and that, therefore, the Trial Chamber erred in

the exercise of its discretion in this case.

46. Thus, the next sections analyse: (a) expeditiousness; (b) adequate notice; (c) the

fundamental nature of the right in question; (d) Mr Katanga's strategy; (e) new

information; and (f) Mr Ngudjolo Chui's right to a trial without undue delay.

^ Prosecutor v. Thomas Lubanga Dyilo, "Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled 'Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change'", 8 December 2009, ICC-01/04-01/06-2205, (OA 15), (OA 16), para. 37; Prosecutor v. Jean-Pierre Bemba Gombo, "Judgment on the appeal of Mr. Jean-Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled 'Decision on application for interim release'", 16 December 2008, ICC-01/05-01/08-323, (OA), para. 28; Prosecutor v. Thomas Lubanga Dyilo, "Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled 'Decision on the consequences of nondisclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecufion of the accused, together with certain other issues raised at the Status Conference on 10 June 2008'", 21 October 2008, ICC-01/04-01/06-1486, (OA 13), para. 46; Prosecutor v. Thomas Lubanga Dyilo, "Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2) (a) of the Statute of 3 October 2006", 14 December 2006, ICC-01/04-01/06-772, (OA 4), paras 36-39. ° Majority Judgment, para. 56.

^ Majority Judgment, paras 57-84.

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(a) Expeditiousness

47. As seen above, expeditiousness was a factor referred to several times by the

Trial Chamber in reaching its conclusions, ^ while it was relied on heavily in the

Majority Judgment. ^ The Majority Judgment stated that "[ejxpeditiousness is thus an

independent and important value in the Statute to ensure the proper administration of

justice, and is therefore more than just a component of the fair trial rights of the

accused. For this reason, article 64 (2) enjoins the Trial Chamber to ensure that the

trial is both fair and expeditious" (citation omitted). "* In an earlier judgment, the

Appeals Chamber has found that "[t]he expeditious conduct of the proceedings in one

form or another constitutes an attribute of a fair trial."^^ In this sense, an expeditious

trial is a right that must be guaranteed to an accused. ^ We do not disagree that there is

a need for, and obligation on. Chambers to ensure that trials before the Court are

conducted expeditiously. However, Chambers are equally required to ensure "full

respect for the [other] rights of the accused," as guaranteed not only through article 64

(2) but also through an independent provision dealing with the issue - article 67. In

this regard, the rights of the accused must not be infringed at the expense of

expeditiousness.

48. The Appeals Chamber has specifically stated that the "overall role ascribed to

the Trial Chamber in article 64(2) of the Statute [is] to guarantee that the trial is fair

and expeditious, and that the rights of the accused are fully respected' (emphasis

added). ^ Furthermore, Pre-Trial Chamber III has stated that the "expeditiousness of

^ Impugned Decision, paras 41, 42, 63 and 65. " Majority Judgment, paras 33, 42-43, 45-47, 49, 59, and 64. ^ Majority Judgment, para. 47. ^ Situation in the Democratic Republic of the Congo, Appeals Chamber, "Judgment on the Prosecutor's Application for Extraordinary Review of Pre-Trial Chamber I's 31 March 2006 Decision Denying Leave to Appeal", 13 July 2006, ICC-01/04-168, para. 11. ^ Article 64 (2). This view is also supported in ICTY, Appeals Chamber, Prosecutor v. Miroslav Kvocka et al., "Decision on Interlocutory Appeal by the Accused Zoran Zigic Against the Decision of Trial Chamber I Dated 5 December 2000", 25 May 2001, para. 20 ("The right to an expeditious trial is an inseparable and constituent element of the right to a fair trial.").

Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, "Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled 'Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008'", 21 October 2008, ICC-01/04-01/06-1486, (OA 13), para. 46. This balance has also been acknowledged by other Chambers. Trial Chambers have recognised that they are under an obligation to ensure difair and expeditious trial of the accused {Prosecutor v. Lubanga, Trial Chamber I, "Decision Regarding the Timing and Manner of Disclosure and the Date of Trial", 9 November 2007, ICC-01/04-01/06-1019, para. 21; Statement of Judge Bruno Cotte in Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-0 l/07-T-71-Red-ENG, 1 October 2009, p. 3), while Pre-Trial Chambers

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the proceedings, namely the speedy conduct of proceedings [should occur] without

prejudice to the rights of the parties or participants concerned" (emphasis added). ^

This line of reasoning on expeditiousness also finds support in various decisions

issued by the ad hoc tribunals^^ and ECtHR jurisprudence. In relation to the latter, the

ECtHR has stated that "the existence and utilisation of expeditious proceedings in

criminal matters is not in itself contrary to Article 6 of the Convention as long as they

provide the necessary safeguards and guarantees contained therein" (emphasis

added). ^

49. Failure to ensure respect for the rights of the accused becomes all the more

glaring when the issue in question has a direct effect on his or her liberty or the final

outcome of the case, as is the situation in hand. Thus, although stating that it is acting

under the umbrella of expeditiousness for the benefit of an accused, a Chamber may

end up depriving that person of his or her right to be heard in respect of an alleged

have referred to the fact that "expeditiousness of proceedings is closely linked to the concept of judicial proceedings 'within a reasonable time' and complements the guarantees afforded to the suspect, such as the right to fair and public proceedings" (emphasis added) {Prosecutor v. Jean-Pierre Bemba Gombo, Pre-Trial Chamber III, "Decision on the Prosecutor's application for leave to appeal Pre-Trial Chamber Ill's decision on disclosure", 25 August 2008, ICC-01/05-01/08-75, para 17; Prosecutor v. Jean-Pierre Bemba Gombo, Pre-Trial Chamber II, "Decision on the Prosecutor's Application for Leave to Appeal the "Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo", 18 September 2009, ICC-01/05-01/08-532, para. 20). ^ Prosecutor v. Jean-Pierre Bemba Gombo, Pre-Trial Chamber III, "Decision on the Prosecutor's application for leave to appeal Pre-Trial Chamber Ill's decision on disclosure", 25 August 2008, ICC-01/05-01/08-75, para. 18; Prosecutor v. Jean-Pierre Bemba Gombo, Pre-Trial Chamber II, "Decision on the Prosecutor's Application for Leave to Appeal the "Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo", 18 September 2009, ICC-01/05-01/08-532, para. 20. ^ ICTR, Trial Chamber, Prosecutor v. Edouard Karemera et al., "Decision on Joseph Nzirorera's Motion for Stay of Proceedings while Unfit to Attend Trial or Certification to Appeal - Article 20 of the Statute, Rule 73(B) of the Rules of Procedure and Evidence", Case No. ICTR-98-44-T, 11 July 2007, para. 14 endorsed in ICTR, Appeals Chamber, Prosecutor v. Edouard Karemera et al., Decision On Nzirorera's Interlocutory Appeal Concerning His Right To Be Present At Trial, Case No. ICTR-98-44-AR73.10, 5 October 2007, para, 12. See also ICTY, Appeals Chamber, Prosecutor v. Slobodan Milosevic, "Reasons for the Decision on the Prosecution Motion Concerning Assignment of Counsel", IT-02-04, 4 April 2003, para. 41 ("A Trial Chamber has indeed an obligation to ensure that a trial is fair and expeditious; moreover, while ensuring that the trial is fair and expeditions, a Trial Chamber must also ensure that the rights of the accused, as set out in Article 21 of the Statute, are not infringed."). ° ECtHR, Borisova v. Bulgaria, "Judgment", 21 December 2006, application no. 56891/00, para. 40;

ECtHR, Galstyan v. Armenia, "Judgment", 15 November 2007, application no. 26986/03, para. 85. Moreover, in a different judgment, in light of the reasoning in the aforementioned case of Borisova v. Bulgaria, the ECtHR has argued, albeit in a different context, that although allowing the "expeditious examination of disputes" in relation to election procedures was considered desirable, these procedures "should not result in undue curtailment of procedural guarantees afforded to the parties." See ECtHR, Kwiecien v. Poland, "Judgment", 9 January 2007, application no. 51744/99, para. 55.

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violation of the fundamental human right to liberty - as in fact occurred in the instant

case.

50. It is also recalled that the principle of expeditiousness is attributed mostly to the

Chamber as an implied duty to organise the expeditious conduct of the proceedings

and also to itself expeditiously handle all pending issues before it. In this regard, one

may note that pursuant to article 64 (2) it is the Trial Chamber that is under a direct

obligation to ensure the expeditiousness of the trial. Therefore, although the

requirement of expeditiousness applies to all those concerned in the trial, as has been

acknowledged in the Impugned Decision^^ and by the Majority Judgment, ^ the onus

of ensuring expeditiousness falls squarely on the relevant Chamber. As a result,

regardless of the conduct of the parties, it is the duty of the judicial authority in

question, namely the Trial Chamber in this instance, to ensure expeditiousness. ^

^ See Impugned Decision, para. 63. The Trial Chamber, in light of article 24(5) of the Code of Professional Conduct for Counsel made the following comment: "[...] Such an obligation [to ensure the trial is expeditious] must necessarily be performed by all those involved in the trial." ^ Majority Judgment, para. 43. ^ This specific responsibility has also been upheld by the Inter American Court of Human Rights (hereinafter: "lACtHR") and the ECtHR. The ECtHR has held that despite the fact that "[...] it is for the parties to take the initiative with regard to the progress of the proceedings [...] that the principle does not dispense the courts from ensuring compliance with the requirements of Article 6 (art. 6) as regards reasonable fime." (emphasis added) (ECtHR, Scopelliti v. Italy, "Judgment", 23 November 1993, application no. 15511/89, para. 25. See also the following which refer to similar reasoning: ECtHR, Capuano v Italy, "Judgment", 25 June 1987, applicafion no. 9381/81, para. 25; ECtHR, Guincho v Portugal, "Judgment", 10 July 1984, application no 8990/80, para. 32). In other cases the principal contention of the ECtHR is that a "judicial authority" (ECtHR, Buchholz v. Germany, "Judgment", 6 May 1981, application no. 1159111, para. 50: "Without minimising the importance of the [German procedural differences], the Court considers, as did the Commission, that they do not dispense the judicial authorities from ensuring the trial of the action expeditiously as required by Article 6 (art. 6)") or a "judge" (ECtHR, Scopelliti v. Italy, "Judgment", 23 November 1993, application no. 15511/89, para. 25) is not relieved of his responsibility to ensure expedifiousness as a result of the fact that "the power of initiative rests with the parties [...]" (ECtHR, Guincho v Portugal, "Judgment", 10 July 1984, application no. 8990/80, para. 32) or that procedures before the courts are "governed by the principle of the conduct of the litigation by the parties [...]" (ECtHR, Buchholz v. Germany, "Judgment", 6 May 1981, application no. 1159111, para. 50). This obligation further arises as a result of domestic legislation which provides forjudges to act with "due diligence" (ECtHR, Guincho V. Portugal, "Judgment", 10 July 1984, application no 8990/80, para. 32) or with "speed and utmost fairness" (ECtHR, Scopelliti v. Italy, "Judgment", 23 November 1993, application no. 15511/89, para. 25). The lACtHR has also determined that the reasonable time during which a trial is to be conducted is determined through a variety of factors, inter alia, the conduct of judicial authorities (lACtHR, Case of Genie-Lacayo v. Nicaragua, "Judgment", 29 January 1997. Series C No. 30, para. 77; lACtHR, Case of Suarez-Rosero v. Ecuador, "Judgment", 12 November 1997. Series C No. 35, para. 72; lACtHR, Case ofBayarri v. Argentina, "Judgment" 30 October 2008. Series C No. 187, para. 107; lACtHR, Case of Valle-Jaramillo et al. v. Colombia, "Judgment" 27 November 2008. Series C No. 192, para. 155). It has further noted that "lack of due diligence by [...] judicial authorities" (lACtHR, Case of Garcia Prieto et al v. El Salvador, "Judgment", 20 November 2007, Series C No. 168, para. 116) and the "delay of a determination by the judiciary" (lACtHR, Case of Garcia Prieto et al. v. El Salvador, "Judgment", 20 November 2007, Series C No. 168, para. 116) can contribute to a determination of a

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51. In our view, primacy was wrongfully accorded to expeditiousness in both the

Impugned Decision and the Majority Judgment. In addition to the other factors that

should have been properly weighed against the need for expeditiousness, the

following may be noted.

52. In the last paragraph of the Impugned Decision, the Trial Chamber stated that,

as "it need not rule on the merits of the [Defence] Motion, the parties' and

participants' submissions on the merits have not been considered in this Decision." "

The Trial Chamber's rationale for issuing several decisions related to the merits of the

motion, accepting a final filing on 6 October 2009, ^ before ultimately dismissing the

Defence Motion, which was filed on 30 June 2009, on procedural grounds, is

questionable, bearing in mind expeditiousness. ^ First, one may wonder why, if

expeditiousness was a concern, the Trial Chamber could not have fixed shorter

deadlines within which the relevant addressees had to make their filings. ^ More

importantly, one may legitimately query whether the Trial Chamber could not have

used that same period of time to consider the merits of the Defence Motion, which

would have been in line with expeditiousness, as opposed to seeking various filings,

related to the merits, over a period of five months, ultimately dismissing the motion

out of concern for expeditiousness.

53. One must also consider whether the Trial Chamber's reliance on

expeditiousness was reasonable given the stage of the proceedings at the time of filing

of the Defence Motion. In this regard, the Defence Motion was filed at a time when

the Trial Chamber was still acting during the preparatory phase of the trial. Mr

Katanga advised the Trial Chamber on 1 June 2009 that he intended to file the

Defence Motion; at this point, the trial was scheduled to begin nearly four months

later, on 24 September 2009. The Defence Motion was filed on 30 June 2009; at this

point, the trial was still scheduled to begin on 24 September 2009, that is, nearly three

violation of the reasonable time in which a case should be investigated. Recently, it has determined that "[i]f the passage of time has a relevant impact on the judicial situation of the induvidual, the proceedings should be carried out mroe promptly so that the case is decided as soon as possible" (lACtHR, Case of Valle-Jaramillo et al. v. Colombia, "Judgment", 27 November 2008, Series C No. 192, para. 155). ^ Impugned Decision, para. 67.

Impugned Decision, para. 14 (Trial Chamber granted email permission to Prosecutor to file additional case law). ^ See paras 72-73 below. ' Seee.g rule 101.

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months later. ^ In addition, on 31 August 2009, the Trial Chamber postponed the start

of the trial to 24 November 2009. ^ The Impugned Decision was issued on 20

November 2009, four days before the trial began, nearly five months after the filing of

the Defence Motion and nearly six months after Mr Katanga had advised the Trial

Chamber that he intended to file the Defence Motion. In the meantime, and as stated,

the Trial Chamber issued decisions in relation to the Defence Motion, seeking

submissions concerning, presumably, the merits ofthat motion. The preparatory stage

of the proceedings at the time of filing of the Defence Motion was a factor leaning in

favour of a decision to consider the Defence Motion on its merits, particularly given

its nature.

54. As a result of the above, and read with what follows, we find that the Trial

Chamber erred in how it weighed the need for expeditious proceedings in this case.

(b) Adequate Notice

55. The present case concerns the issue of whether a motion filed by Mr Katanga at

a particular stage of the proceedings should have been heard on the merits by the Trial

Chamber. ^ As such, the question is best phrased in terms of a denial of Mr

Katanga's right to be heard, in the context of his general right to a fair trial under

article 67 (1)* ^ as well as in the context of article 64 (2).

56. This is a fundamental right that is guaranteed at the national level, such as in the

procedural due process context, ^^ and also at the international level. Article 7 (1) of

^ 'Décision fixant la date du procès (règle I32-I du Règlement de procédure et de preuve)", 27 March 2009, ICC-01/04-01/07-999, p. 11. ^ ''Décision reportant la date d'ouverture des débats au fond (règle 132-1 du Règlement de procédure et de preuve", 31 August 2009, ICC-01/04-01/07-1442, (hereinafter: "Decision Delaying the Hearing on the Merits"), p. 13. °° The Defence characterised this issue as a right of access to courts. However, we agree with the

Majority that the issue here rather relates to the right to a fair hearing. See Majority Judgment, para. 56. The issue on appeal is not so much the denial, by the Trial Chamber, of the possibility for Mr Katanga to institute judicial proceedings in which the legality of his arrest and detention may be reviewed. Rather, the issue under consideration is the Trial Chamber's failure, in the course of ongoing proceedings, to hear Mr Katanga on a specific motion alleging violations of his fundamental rights on the grounds that said motion was filed out of time. ^^ See also the Majority Judgment, para. 56. ^ ^ See e.g. United States of America, Supreme Court, Mathews v. Eldridge, 24 February 1976, 424 U.S. 319, p. 333; United States of America, Supreme Court, Fuentes v. Shevin, 12 June 1972, 407 U.S. 67, p. 80. English courts have held that it is required for magistrates to call upon the party to submit a preliminary view before dismissing their case, even if the court could do so on their own mofion. On this, see United Kingdom, High Court of Jusfice Queen's Bench Divisional Court, Department of Public Prosecutions v. Cosier, 5 April 2000, [2000] C.O.D. 284; United Kingdom, Divisional Court, R

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the African Charter on Human and Peoples' Rights states that "[ejvery individual

shall have the right to have his cause heard". ^ Having "adequate opportunity to

prepare a case, present arguments and evidence" is viewed by the African

Commission on Human and Peoples' Rights (hereinafter: "African Commission") as

an essential element of a fair hearing. " The African Commission has also found the

right to have one's cause heard extends to "everything related to the matter, including

preliminary issues raised on the matter."*^^ The ECtHR likewise recognised that "the

right to a fair trial as guaranteed by Article 6 § 1 of the Convention includes the right

of the parties to the trial to submit any observations that they consider relevant to their

case. The purpose of the Convention being to guarantee not rights that are theoretical

or illusory but rights that are practical and effective [...], this right can only be seen to

be effective if the observations are actually 'heard', that is duly considered by the trial

court" (citation omitted). ^^ It has also been stated that "no decision, which is not

entirely unconditionally in favour of an individual, may be taken unless the person

concerned was previously given an opportunity to state his or her position on the

issue. [...] [Further] the right to be heard can be classified as an absolute

guarantee". ^^ The fundamental nature of the right has also been referred to in the

jurisprudence of the ad hoc tribunals. For example, the Appeals Chamber for the

International Criminal Tribunal for the former Yugoslavia (hereinafter: "ICTY") has

stated that generally "a party always has a right to be heard on its motion", ^ while

the Appeals Chamber for the Special Court for Sierra Leone has indicated that parties

ought to be given an opportunity to be heard "as natural justice demands."^^^

V. Barking and Dagenham Justices, ex parte Director of Public Prosecutions, 8 November 1994, [1995]CrimLR953. '°^ African Charter on Human and Peoples' Rights, signed on 27 June 1981, entered into force 21 October 1986, 1520 United Nations Treaty Series 26363, art. 7 (1). ^^ African Commission on Human and People's Rights, "Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa", 2001, p. 2, accessed at http://www.achpr.org/english/declarations/Guidelines_Trial_en.html. ("Principles and Guidelines"). ° African Commission, Zimbabwe Lawyers for Human Rights & Associated Newspapers of

Zimbabwe/Republic of Zimbabwe, "Decision", 24-30 June 2009, application no. 284/2003, para. 174. ° ECtHR, Grand Chamber, Perez v. France, "Judgment", 12 February 2004, application no.

47287/99, para. 80. See also ECtHR, Grand Chamber, Andrejeva v. Latvia, "Judgment", 18 February 2009, application no. 55707/00, para. 96. ° Trechsel, p. 89-90.

108 YQjY, Prosecutor v. Goran Jelisic, Appeals Chamber, "Judgement", 5 July 2001, IT-95-10-A, para. 25. '°^ SCSL, Prosecutor v. Alex Tamba Brima et al.. Appeals Chamber, "Judgment", 22 February 2008, SCSL-2004-16-A,para. 64.

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http://www.achpr.org/english/declarations/Guidelines_Trial_en.html

57. At the same time, we do not dispute that the right to be heard is not absolute and

may be subject to limitations. ^^ As stated above, the African Commission mentions

how a fair hearing only requires "adequate" opportunity to present one's case. ^ In

the absence of adequate opportunity to be heard, a fundamental right, such as the right

to a fair hearing, is only restricted in human rights and ad hoc tribunal jurisprudence

through a proportionality assessment that looks to whether the restriction is in service

of a sufficiently important objective that must impair the right no more than is

necessary to accomplish the objective. ^^ International jurisprudence reveals several

examples where a party's right to be heard was found to be validly circumscribed. ^^

58. In our view, the issue turns on whether Mr Katanga had an adequate opportunity

to be heard, which in turn relates to whether he had certainty as to when he had to file

the Defence Motion.

59. Under the European Convention the need for certainty is an indispensable

element of a right to a fair hearing. The ECtHR stated that "[t]he right to a fair hearing

before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted

in the light of the Preamble to the Convention, which declares, among other things.

'° For example, it is agreed in principle that it is acceptable to deny an applicant of the right to be heard on the merits of his or her motion when it is filed outside a clearly defined time limit and an extension of fime is not merited (e.g. see regulafion 35 of the Regulations of the Court). Several such time limits are indicated in the Regulations of the Court. E.g. regulation 34 (responses and replies); regulation 50 (specific fime limits for victims and State parties); regulation 58 (1) (fime limits for appeals under Rule 150); and regulation 64 (2) (fime limits for appeals under Rule 154). ^ ^ Principles and Guidelines, p. 2. ^^ For example, the ECtHR has consistently found in the limiting defence disclosure context that "only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1" and that "in order to ensure that the accused receives a fair trial, any difficulfies caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorifies". ECtHR, Grand Chamber, Edwards and Lewis v. United Kingdom, "Judgment", 27 October 2004, application nos. 39647/98 and 40461/98, paras 46, 48; ECtHR, Grand Chamber, Jasper v. United Kingdom, "Judgment", 16 February 2000, application no. 27052/95, para. 52; ECtHR, Grand Chamber, Rowe and Davis v. United Kingdom, "Judgment", 16 February 2000, application no. 28901/95, para. 61; ECtHR, Grand Chamber, Fitt v. United Kingdom, 16 February 2000, application no. 29777/96, para. 45. See also ICTY, Appeals Chamber, Prosecutor v. Slobodan Milosevic, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence Counsel, 1 November 2004, IT-02-54-AR73.7, para. 17 (restrictions on fundamental right like right to self-representation guided by "some variant of a basic proportionality principle"). ^^ The Appeals Chamber has previously held that a party has no right to be heard in a case where the reason arguments were not considered because the party's original submissions on the same matters lacked specificity. Prosecutor v. Germain Katanga, "Judgment on the appeal of the Prosecutor against the decision of Pre-Trial Chamber I entified 'First Decision on the Prosecution. Request for Authorisafion to Redact Witness Statements'", 13 May 2008, ICC-01/04-01/07-475 (OA), para. 108. The ICTY Appeals Chamber found no error when the prosecufion was denied a right to an oral hearing in a situafion when all their basic arguments were made in a written motion that required no oral supplement. Prosecutor v. Goran Jelisic, "Judgement", 5 July 2001, IT-95-10-A, para. 25.

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the rule of law to be part of the common heritage of the Contracting States. One of the

fundamental aspects of the rule of law is the principle of legal certainty". In the

ECtHR the standard of "lawfulness" is set by the Convention. The standard "requires

that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the

citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable

in the circumstances of the case, the consequences which a given action may

entail."^ '

60. Thus, in order to achieve certainty, a Chamber, when faced with an issue that is

not regulated by a relevant legal provision, should compensate for the lack of such a

provision that would otherwise provide certainty. In doing so, the Chamber provides

the necessary certainty and predictability to the parties and it ensures that the

proceedings are properly organised. This in turn guarantees due respect for the rights

of the parties. In this respect. Chambers should have in place a clear policy which will

indicate to the parties how it expects the proceedings to unfold and in particular, as far

as the issue at stake is concerned, that parties are expected to file motions, not

otherwise regulated by law, whenever they are in a position to effectively exercise

their right. This is an assessment that depends primarily on the facts of each particular

case.

61. In the case in hand, the Trial Chamber found that the Defence Motion was filed

too late. The result of its conclusions, even though it did not expressly say it, must

have been that Mr Katanga was adequately on notice that his motion should have been

filed at a much earlier phase in the proceedings, in particular, even at the pre-trial

phase. We cannot agree. As put by the Majority, the question is "whether Mr Katanga

was adequately put on notice that he should have raised the issue of his allegedly

unlawful pre-surrender arrest and detention earlier",^ ^ and, in our view, that failure to

do so would render his application inadmissible. In addition, whether he had

reasonable grounds for not filing his motion earlier. In our view, although Mr Katanga

may have missed earlier opportunities when he could have filed the Defence Motion,

it does not follow that his filing was too late (or not within a reasonable time), when

he had not been clearly advised as to when 'too late' would be. Three groups of

' " ECtHR, Grand Chamber, Medvedyev and Others v. France, "Judgment", 29 March 2010, application no. 3394/03, para. 80. ^^ Majority Judgment, para. 58.

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proceedings will be examined; the pre-trial phase, the trial phase and detention

reviews.

(i) Pre-Trial Phase

62. As seen above, the Trial Chamber established a requirement that the Defence

Motion should have been filed during the pre-trial phase. It admonished Mr Katanga

for not having done so. However, the record illustrates that Mr Katanga's conduct in

this respect cannot be faulted. Indeed, Mr Katanga may have acted on interpretations

of the law and statements made by the Pre-Trial Chamber and certainly had not been

advised that he was required to file his motion at this time.

63. Mr Katanga raised this issue from the very earliest moment, his first appearance

in Court, on 22 October 2007.^^^ Thereafter, he requested the Pre-Trial Chamber's

assistance in order to obtain relevant information from the authorities of the

Democratic Republic of the Congo (hereinafter: "DRC") and sought its guidance as to

the time limits for filing his motion (see further below).^^^ The Pre-Trial Chamber

made statements in this respect, based on its interpretation that the issues raised

related to jurisdiction. In addition, the information sought from the DRC was only

received by Mr Katanga on 28 August 2008, which was after the conclusion of the

confirmation hearing (which ended on 16 July 2008), and during the 60 day period

provided to the Pre-Trial Chamber to issue its written decision.^^^ In the result, this

was approximately one month before the issuance ofthat confirmation decision on 30

September 2008.^^^

64. It seems clear to us that the Trial Chamber criticised Mr Katanga for failing to

take advantage of opportunities to file his motion during the pre-trial phase, despite

' ^ See Impugned Decision, para. 43. ^^ During the initial appearance, Mr Katanga was invited by the Pre-Trial Chamber to submit his arguments in wrifing. Mr Katanga filed an applicafion, on 7 April 2008, with a view to obtaining the DRC's cooperation in providing documents to substanfiate his allegations. In view of his concern as to the deadline by which he had to file his applicafion, the Pre-Trial Chamber, on 17 April 2008, stated that, even if he did not obtain the documents before the confirmation hearing, this would not affect his right to make his challenge under article 19, the Pre-Trial Chamber having characterized the matter as falling under that provision. Further statements were made by the Pre-Trial Chamber in an ex parte decision of 25 April 2008 and during a hearing on 14 May 2008. See Impugned Decision, paras 43-45. ^^ Regulation 53 of the Regulations of the Court. ^^ "Decision on the confirmafion of charges", 30 September 2008, ICC-01/04-01/07-717, (Public Redacted Version).

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the fact that it accepted that it would consider the opportunities at the trial phase.^^^ It

seems also clear that the Trial Chamber took this into account in its overall

assessment of the case. ^^ In our view, and having considered the facts, in particular

the Pre-Trial Chamber's statements to Mr Katanga based on its interpretation of the

law, the Trial Chamber erred in taking those possibilities into account. Mr Katanga

had not been advised, before the issuance of the Impugned Decision, that he should

have filed his motion during the pre-trial phase. He relied on the Pre-Trial Chamber's

interpretation of the law and respected the view taken in this regard by the Pre-Trial

Chamber, which was seised of the case prior to the trial phase. Nevertheless, he was

admonished. In our view it was an error to sanction Mr Katanga for procedural

behaviour that was in compliance with a view of a Chamber which was at the relevant

time seised of his case. The Trial Chamber's criticism of his failure to raise the matter

during that phase is, therefore, unwarranted. Although it is true that Mr Katanga

received the information sought from the DRC one month before the confirmation of

charges decision was issued by the Pre-Trial Chamber,^^^ it is not unreasonable that in

these circumstances he did not file the Defence Motion before that Chamber, in

particular as that Chamber had indicated that he could file it later.

(ii) Trial Phase

65. Turning to the trial phase, indeed the Trial Chamber's main criticism seems to

be, as it states at the outset of its analysis on this phase, "that, between its constitution

on 24 October 2008 and the hearing held by it on 1 June 2009, at no time did the

Defence for Germain Katanga raise with it the matter of the unlawfulness of the

latter's detention, despite having several opportunities to do so."^^^ Our study of the

record has not uncovered any instances where Mr Katanga advised the Trial Chamber

that he intended to raise this matter (that is, before the Hearing of 1 June 2009).

Neither has Mr Katanga asserted that this was the case. However, as stated above, the

question is whether he knew he had to raise the issue earlier. The Trial Chamber, in

the Impugned Decision, did not expressly consider whether Mr Katanga had such

notice. Rather, it largely focused on the opportunities that were available to him in

addition to the Order of 13 November 2008. In considering those opportunities, the

^ ° Impugned Decision, paras 48-50. ^^ See Impugned Decision, paras 48, 66. ^^ See above, para. 63. ^^ Impugned Decision, para. 51.

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Trial Chamber referred to the Order of 13 November 2008, the status conferences of

27 and 28 November 2008 and 3 February 2009 and its reviews of Mr Katanga's

detention as required under article 60. The Majority Judgment, however, considered

whether Mr Katanga had adequate notice, and in doing so relied heavily on the Order

of 13 November 2008. "* In our view, we must now consider whether Mr Katanga had

adequate notice and certainty as to when he had to raise this issue during the trial

phase.

66. In the Order of 13 November 2008, the Trial Chamber, pursuant to article 64 (2)

and 64 (3) (a) and regulation 28 (2) "address[ed] a list of questions to the participants

and the Registry [.. .]",^^^ requesting answers thereto which they could then expand on

in status conferences to be later convened. It "further invite[d] the participants and the

Registry to add a second part to their Written Response setting out the issues and

observations which they would deem relevant and on which they would like the

Chamber to rule."^^^ In the list of questions, it included a question as to whether "the

Defence [has] any observations to make concerning the conditions of detention of the

accused". * ^ Mr Katanga submitted the "Defence Response to the Order dated 13

November 2008" in which he did not raise issues other than those in the "list of

questions" and otherwise, responded to the latter question by indicating gratitude for

the arrangement of a visit from his family, making no observations on the conditions

of his detention. ^

67. As stated, the Majority focused on this order, finding that it "sufficiently put Mr

Katanga on notice that he had to raise the issue of the lawfulness of his pre-surrender

arrest and detention in his written observations due on 24 November 2008 or at the

subsequent status conference."^^^ It is also notable that nowhere in the Impugned

Decision does the Trial Chamber itself rely on the Order of 13 November 2008 as

establishing a deadline. It is only in paragraph 65 of the Impugned Decision that the

Trial Chamber implicitly refers to this order when stating that by "not filing its

Motion until seven months after the initial invitation to the Defence to submit to the

^" Majority Judgment, paras 59-62. ^^ Order of 13 November 2008, para. 3. ^^ Order of 13 November 2008, para. 5. *^ Order of 13 November 2008, para. 10. ^^ ICC-01/04-01/07-763, 24 November 2008, p. 3. ^^ Majority Judgment, para. 62.

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Chamber the relevant issues on which it wished the latter to rule, the Defence has not

met the aforementioned obligation in regard to the expeditiousness, despite the many

opportunities subsequently provided to if'. Indeed, the reference to "the many

opportunities subsequently provided to [Mr Katanga]" is also indicative of the fact

that the Trial Chamber did not consider the Order of 13 November 2008 to establish a

time limit. Rather, as stated above, it seemed to focus on expeditiousness and the

opportunities that Mr Katanga purportedly had. In addition, it is noted that although

the title on the cover page of the document refers to an "order", the participants were,

in fact, in paragraph 5 ofthat order, invited to raise issues with the Trial Chamber. ^

They were not ordered to do so.

68. It is also striking to compare the wording (albeit also not wholly clear) in the

Impugned Decision with the unclear wording of the Order of 13 November 2008. In

our view, that order lacked certainty both as to deadlines and any possible policy that

the Trial Chamber may have established in relation to how it intended to deal with

such issues. In this respect, there was a distinct lack of certainty as to the expected

procedural behaviour of Mr Katanga. As a result, we cannot agree with the Majority

that the Order of 13 November 2008 provided Mr Katanga with adequate notice.

69. As for whether certainty was provided in any other manner, the following facts

further illustrate our conclusion that the Trial Chamber established neither a clear time

limit nor a policy.

70. In the hearing on 27 and 28 November 2008, which followed the Order of 13

November 2008, the Trial Chamber did not state that no further issues could be raised

during or after that hearing.^^^ Indeed, albeit his written submissions were due to have

been filed on 24 November 2008,^^^ the Trial Chamber did not object to Mr Katanga

bringing up the issue of admissibility, which had not been discussed in those written

submissions, during the status conference on 28 November 2008. " " The Trial

Chamber, in the Impugned Decision, also stated that Mr Katanga did not introduce the

^ ° Order of 13 November 2008, p. 1 (tifie), para. 5. ^ ' See ICC-01/04-01/07-T-52 ENG, 27 November 2008; ICC-01/04-01/07-T-53 ENG, 28 November 2008 (hereinafter: "Status Conference of 28 November 2008"). ^^ Order of 13 November 2008, p. 11. ^^ Status Conference of 28 November 2008, pp. 49-52.

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issue of his unlawful detention during the status conference on 3 February 2009. "

However, again, the Trial Chamber did not indicate to Mr Katanga, at the time, that

this could be problematic.^^^

71. Later, the Trial Chamber scheduled the Hearing of 1 June 2009 in order to deal

with Mr Katanga's admissibility challenge. At the end ofthat hearing, Mr Katanga's

counsel stated that he intended to file an application regarding the unlawfulness of his

detention. When asked by the Presiding Judge when it would be filed, as "time is

running", he replied that it would be "by the end of the month". ^ Just after, the

Presiding Judge stated that "[...] it would have been more expeditious to file that

motion earlier [.. .]".^'^^ When counsel for Mr Katanga responded by stating that "[...]

[they would] do [their] utmost to get this motion before [the Chamber] really as soon

as [they could]",^^^ the Presiding Judge responded by saying: "Well, then, do your

best even more". The Presiding Judge also asked his fellow judges, at the end of the

hearing, whether they had anything to add. They indicated that they did not.

Assuming, arguendo, that the Order of 13 November 2008 was sufficient to put Mr

Katanga properly on notice, this subsequent exchange, during that hearing, overrode

that order and revealed acceptance by the Presiding Judge that the filing was not

problematic. The Chamber thereby indicated that the motion would be accepted when

filed and that it was not out of time. In fact, one could even consider that the Presiding

Judge, through what he stated, established a deadline for the motion in question,

though not a fatal one given the aforesaid comment he made at the hearing (i.e.:

"Well, then, do your best even more"). Further, if the Trial Chamber was aware that

the motion would be too late when filed at the end of June 2009, or that it had

imposed a deadline of the sort understood by the Majority in the Order of 13

November 2008, then one would have expected it to have stated that it would reject

the intended filing or, at the very least, to have expressed some real concern. It did

not.

72. Even if one takes the view that the Trial Chamber could not necessarily be

expected to respond definitively to an issue raised in a hearing without prior warning.

^^ Impugned Decision, para. 53. ^^ See "Status Conference", 3 February 2009, ICC-01/04-01/07-T-56 ENG. *^ Hearing of 1 June 2009, p. 118. ^^ Hearing of 1 June 2009, p. 118. ^^ Hearing of 1 June 2009, p. 119.

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the first time it became clear to the parties that there was a problem was in the

Impugned Decision, a decision rendered more than five months after the Hearing of 1

June 2009. ^^ The fact that the Trial Chamber issued several decisions in the

intervening period, rather than illustrating a concern that the Defence Motion had

been filed too late, instead demonstrated that the Trial Chamber intended to consider

the matter on its merits. In this regard, the Trial Chamber granted a request by the

Prosecutor on 7 July 2009 " ^ for access to the report filed by the Registrar concerning

the execution of the warrant of arrest. " ^ On 25 August 2009, it issued decisions

inviting the Registry " ^ and the DRC ^ to file observations. The Trial Chamber later

granted a Prosecutor request to file an additional authority, "*"* this new authority was

filed on 6 October 2009. " ^ It should be emphasised that all of the observations

submitted to the Trial Chamber dealt with the merits of the Defence Motion and did

not touch upon the issue of timing, presumably because no indications had been given

by the Chamber that this was an issue. Moreover, the fact that the Trial Chamber

sought submissions from both the DRC and the Registry illustrates even more clearly

that the Trial Chamber must have been inclined to entertain the merits of the Defence

Motion, as such orders must have been directed towards receiving substantive

submissions on the merits.

73. It is unusual that, in a case where the Trial Chamber seems to assume that it

should have been clear to Mr Katanga that the Defence Motion was late, it itself

seems to have been under the impression, until at least the start of October 2009, the

date of the last preliminary decision on the issue before the Impugned Decision, that

the application could be considered on its merits. Indeed, the Decision Delaying the

Hearing on the Merits relies on the need to dispose of the Defence Motion as being

^ ^ See also the "Second Preliminary Remark" above. '" ^ "Prosecution request for re-classificafion of Report of the Registrar", ICC-01/04-01/07-1276, paras 5-6. ^^ "Ordonnance autorisant la reclassification d'un rapport du Greffe (norme 23 bis du Règlement de la Cour)", 15 July 2009, ICC-01/04-01/07-1306. '' ^ "Decision Inviting Observafions from the Registry on Germain Katanga's Application for a Declarafion on Unlawful Detention or Stay of Proceedings", ICC-01/04-01/07-1425-tENG. "^ "Decision Invifing Observations from the Democratic Republic of the Congo on Germain Katanga's

Applicafion for a Declarafion on Unlawful Detenfion or Stay of Proceedings", ICC-01/04-01/07-1426-tENG. '" " Impugned Decision, para. 14. See also "Prosecufion Request Pursuant to Regulafion 28 for Leave to Present Addifional Authority Regarding 'Defence mofion for a declaration of unlawful detenfion and stay of proceedings'", 4 September 2009, ICC-01/04-01/07-1455. "^ "Prosecufion's submission of additional authority regarding 'Defence mofion for a declarafion of

unlawful detenfion and stay of proceedings'", ICC-01/04-01/07-1511.

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one of the reasons why it needs to postpone the trial. The need to dispose of the

Defence Motion is not, it must be acknowledged, the main reason, but nevertheless it

is one of the reasons. Again, one may question why, if it was clear that it was already

too late by this stage, which it should have been if there was a deadline or relevant

policy in place, this would have been such a deciding factor.

74. The lack of certainty is also apparent when one looks at the Trial Chamber's

inconsistent approach. The Trial Chamber, in relation to admissibility, explicitly

decided that, although the "Motion Challenging the Admissibility of the Case by the

Defence of Germain Katanga, pursuant to Article 19 (2) (a) of the Statute"^ "^

(hereinafter: "Admissibility Challenge") was late, it nevertheless would consider that

challenge. It found that such challenges must be filed before the Pre-Trial Chamber, ' '

but it excused Mr Katanga's late filing, before the Trial Chamber, because of the

ambiguity of the relevant provisions and the indications that the Pre-Trial Chamber

had given Mr Katanga}^^ As a result, it considered the Admissibility Challenge on its

merits. " ^ The Trial Chamber found:

The Chamber is of the view that the reasons given do not excuse the late filing of the Motion. It should indeed be pointed out that strategic considerations invoked by parties cannot by themselves justify the filing of a document out of time. However, in the opinion of the Chamber, and in view of the ambiguity of the provisions of the Statute and of the Rules, there are reasonable grounds to believe that the Defence was never aware that it was filing the Motion out of time and that it was not its intention to do so. On the contrary, the position adopted by the Pre-Trial Chamber at the ex parte hearings may even have led the Defence to believe that a challenge, based on any of the grounds set out in article 17(1), could be brought under article 19 of the Statute after the confirmation of charges. ^

75. It is not clear why the Trial Chamber considered that ambiguity in the latter

instance would nevertheless allow it to consider the merits ofthat challenge, whereas

ambiguity in the instant case would not. This is all the more so, since the Trial

^^ ICC-01/04-01/07-891-Conf-Exp., 10 February 2009. The public redacted version is dated 11 March 2009. ^ ' Save for challenges based only on ne bis in idem, which could be allowed with the leave of the Trial Chamber and "only in exceptional circumstances", "Reasons for the Oral Decision on the Mofion Challenging the Admissibility of the Case (Article 19 of the Statute)", ICC-01/04-01/07-1213-tENG, 16 June 2009, para. 49 (hereinafter: "Reasons for Decision on Admissibility"). ^^ Reasons for Decision on Admissibility, paras 56-58. '" ^ Reasons for Decision on Admissibility, para. 56. ^ ° Reasons for Decision on Admissibility, para. 56.

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Chamber, in that case, specifically recalled the position of the Pre-Trial Chamber that

"may have led the Defence to believe that a challenge, based on any of the grounds

set out in article 17(1), could be brought under article 19 of the Statute after the

confirmation of the charges."^^^ In the instant case, and as illustrated above, there

seems to have been sufficient "ambiguity of the provisions of the Statute and of the

Rules" for the Trial Chamber itself to have appeared to have initially proceeded on the

basis that it would consider the merits of the Defence Motion. Indeed, there was not

only ambiguity but also a clear absence of a provision regulating the timing of the

filing of the Defence Motion.

76. Finally, even if the Trial Chamber had intended for the Order of 13 November

2008 to alert Mr Katanga to the fact that he had to file the Defence Motion earlier, this

was the first time that the timing of such motions had been considered. In such

circumstances, it seems reasonable to us that the Trial Chamber should have followed

the approach taken in relation to the Admissibility Motion, clarifying the law and

considering the merits. This was, in fact, the predictable approach that Mr Katanga

could have expected, based on the Trial Chamber's past practice.

(iii) Detention Reviews

11, The Trial Chamber also relied on reviews of detention as providing Mr Katanga

with opportunities to raise the issue of his alleged pre-surrender unlawful arrest and

detention. ^ At the same time, the Trial Chamber itself acknowledged that IVIr

Katanga was not required to raise the issues in the Defence Motion in the context of

these reviews and that he "doubtless considered that the detention then under review

covered only the period starting with his arrival at the Court's Detention Centre on 18

October 2007".^^^ Nevertheless, the Trial Chamber went on to use the fact of those

hearings in support of its assertion that they were opportunities for when Mr Katanga

should have raised the issue. Surprisingly, it also referred to filings that took place

after the filing of the Defence Motion, and after the issuance of the Impugned

^^ Reasons for Decision on Admissibility, para. 56. ^^ Impugned Decision, paras 54-58. ^^ Impugned Decision, para. 58.

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Decision, as being occasions when Mr Katanga could feasibly have filed his

motion. "

78. It is not disputed that Mr Katanga may have had opportunities for raising the

issue, but that is not the same as saying that he was required to raise this issue at that

time. Indeed, the Trial Chamber's continued reliance and referral to hearings during

which Mr Katanga could have raised this issue do nothing but illustrate the lack of

certainty as to when the cut off date would have been. It was not clear when was too

late. If 30 June 2009 (the date of filing of the Defence Motion) was too late, then one

may legitimately question why the Trial Chamber would refer to filings after that date

in weighing up the opportunities that Mr Katanga had to raise the issue.

Conclusion as to Adequate Notice

79. The facts, as presented in the previous paragraphs, demonstrate that the Trial

Chamber had neither a clear policy in place nor had it fixed a clear deadline, both of

which would have provided Mr Katanga with certainty as to when the Defence

Motion was due to be filed. Mr Katanga was, accordingly, deprived of certainty in

relation to the Trial Chamber's expectations of his procedural behaviour.

80. Although the Trial Chamber refers to several possibilities for when the Defence

Motion could have been raised, it did not state with clarity when it would have been

too late. It found that seven months constituted an unjustified delay; this, despite the

fact that Mr Katanga could not have known that this was the case. Had the delay been

five or six months (or any number of months), Mr Katanga would still not have

known that this was unreasonable, without the Chamber having indicated its approach

in advance. The examples given by the Trial Chamber indeed illustrate, if anything, a

lack of certainty itself as to when the motion had been due, a conclusion which sits

uncomfortably with a finding that it should have been clear to Mr Katanga. This is

further illustrated by the events and indications by the Trial Chamber surrounding the

actual filing of the Defence Motion which were not of the sort that would have caused

him to be concerned as to the timing of his filing, nor to the extent that he would have

felt the need to argue that his motion should be accepted as being on time.

^^ Impugned Decision, para. 56.

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81. We also cannot agree with the Majority Judgment's reliance on the Order of 13

November 2009, its finding that that order was sufficiently clear to have put Mr

Katanga on notice that he had to file his motion by a certain time and its reliance on

the other opportunities that were available to Mr Katanga. None of this meets the

standard required to ensure a fair trial, notwithstanding the fact that it is accepted that

limitations on the right to be heard may be imposed. In this respect, we accept that the

Trial Chamber can regulate its proceedings. But in this case, the Trial Chamber did

not indicate with sufficient certainty when and under what conditions motions were to

be filed. Clarity for the participants is an essential element of a fair trial and in this

case, it was not provided.

(c) The Fundamental Nature of the Right in Question

82. The Trial Chamber's error is also manifested by the complete disregard of the

fundamental nature of Mr Katanga's right to be heard in relation to an alleged

violation of his right to liberty. The underlying allegation in the Defence Motion is

that of unlawful arrest and detention. The right of detainees to have the lawfulness of

their arrest or detention reviewed by a court of law and to be released if the detention

is found to be unlawful is an integral part of the right to liberty, and is enshrined in the

major human rights instruments. ^^ The lACtHR has recognised the fundamental

nature of this right and has stated that it must be protected even in emergency

situations. ^^ Even though not all jurisdictions find this right to be non-derogable, ^^

fundamental rights, like the right to challenge unlawful detention, can only be

restricted through a proportionality assessment that looks to whether the restriction is

in service of a sufficiently important objective that must impair the right no more than

^^ Internafional Covenant on Civil and Polifical Rights, 16 December 1966, 999 United Nations Treaty Series 14668, art. 9 (4); 1950 Convention for the Protection of Human Rights and Fundamental Freedoms, art. 5 (4); American Convenfion on Human Rights "Pact of San Jose, Costa Rica", 22 November 1969, 1144 United Nafions Treaty Series 17955, art. 7 (6). ^^ lACtHR, Habeas Corpus in Emergency Situations (Art 27.2 and 7.6 of the ACHR), "Advisory Opinion", 30 January 1987, Series A, no. 8, para. 33; more recently, see, lACtHR, Castillo Petruzzi et al. V. Peru, "Judgment", 30 May 1999, para. 187 (stating "of the essenfial judicial guarantees not subject to derogation or suspension, habeas corpus is the proper remedy in reassuring that a person's life and physical integrity are respected, in prevenfing his disappearance or the keeping of his whereabouts secret and in protecfing him against torture or other cruel, inhumane, or degrading punishment or treatment."). ^ E.g. United States, Article 1 Section 9 of United States Constitufion, adopted on 17 September 1787

("The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it") (emphasis added).

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is necessary to accomplish the objective. ^^ Thus, international human rights law

recognises the right of a detained person to challenge the legality of arrest and

detention; ^^ as a result, the right to judicial review of the lawfulness of arrest and

detention is violated whenever a detained person is not allowed access to courts for

judicial review of his or her detention. ^^ In addition, the detaining authorities are put

under an obligation to provide prompt and automatic review of detention^^^ by a court

having the power to order the release of the detainee. An application challenging the

legality of arrest and subsequent detention must be heard promptly even if the court

^^ See ICTY, Appeals Chamber, Prosecutor v. Slobodan Milosevic, Decision on Interlocutory Appeal of the Trial Chamber's Decision on the Assignment of Defence Counsel, 1 November 2004, IT-02-54-AR73.7, para. 17 (citing a variety of national and regional human rights jurisprudence to support the idea that "any restriction of a fundamental right must be in service of 'a sufficiently important objective,' and must 'impair the right... no more than is necessary to accomplish the objective.'"). *^ As noted by the Inter-American Court of Human Rights, the right to habeas corpus and prompt recourse to a court enshrined in articles 7 and 25 of the American Convention of Human Rights "are among those judicial remedies that are essential for the protection of various rights whose derogation is prohibited by article 27 (2) - the non derogation clause - of the Convention" in that they serve to "preserve legality in a democratic society". lACtHR, Habeas Corpus in Emergency Situations (Arts. 27 (2) and 7 (6) of the American Convention on Human Rights), Advisory Opinion OC-8/87, January 30, 1987, Inter-Am. Ct. H.R, (Ser. A) No.8 (1987), para. 42. The Court held that articles 25 and 7 of the ACHR were so fundamental that they could be implied into article 27 (2) - the non derogation clause of the ACHR - in spite of the fact that they were not expressly mentioned in that provision. Specifically, article 27 states that "everyone has the right to simple and prompt recourse, or any other effecfive recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by [...] this Convenfion". See also, lACtHR, Martin Javier Roca Casas V. Peru, OEA/Ser.L/V/II.98, doc. 6 rev., 13 April 1998, para. 95; Inter-American Commission on Human Rights, Camilo Alarcon Espinoza, Sara Luz Mozombite, Jeronimo Villar Salome, Daniel Huaman Amcifuen v. Peru, cases 10.941, 10.942, 10.944, 10.945, Report No. 40/97, OEA/Ser.L/V/II.95 Doc. 7 rev. at 780 (1997), paras 93-95. Similarly, the ECtHR has stated that article 5 (4) of the European Convention entities a detained person to a review of the procedural and substantive conditions which are essential to the lawfulness of his detention, see ECtHR, Court, Brogan 6 others v. United Kingdom, Judgment, 29 November 1988, application no. 11209/84; 11234/84; 11266/84; 11386/85, para. 65; ECtHR, Assenov & others v. Bulgaria, Judgment, 28 October 1998, application no. 90/1997/874/1086, para. 162; ECtHR, Vodenicarov v. Slovenia, Judgment, application no. 24530/94, 21 December 2000, para. 33. ^^ I ACHR (Commission), Luis Lizardo Cabrera v. Dominican Republic, 13 April 1998, OEA/Ser.L/V/II.98, doc. 6 rev., para. 110; Human Rights Committee, Hammel v. Madagascar, "Views", CCPR/C/29/D/155/1983, 3 April 1987, para. 20. The Appeals Chamber of the ICTR in the Barayagwiza case, for instance, has emphasised that the "right to be heard on the [writ of habeas corpus] is an entirely separate issue from the underlying legality of the initial detention" and that an applicant's right is violated if the writ is not heard. Prosecutor v. Jean-Bosco Barayagwiza, "Decision", 3 November 1999, ICTR-97-19-AR-72, para. 89. At paragraph 88, the ICTR Appeals Chamber states: "[a]lthough neither the Statute nor the Rules specifically address writs of habeas corpus as such, the notion that a detained individual shall have recourse to an independent judicial officer for review of the detaining authority's acts is well-established by the Statute and Rules" and that "this right allows the detainee to have the legality of the detention reviewed by the judiciary". ' ^ Automatic in the sense of not being dependent on an application made by the detainee. See also article 60 (3) of the Statute; lACtHR, Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights), "Advisory Opinion OC-9/87", January 30, 1987, Series A No.9. At paragraph 24 the Court stated that: "for such a remedy to exist, it is not sufficient that it be provided for by the Consfitution or by law or that it be formally recognised, but rather it must be truly effecfive in establishing whether there has been a violafion of human rights and in providing redress".

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ultimately rejects the application as having no merit. The extent of the protections

afforded a detained person in this arena are therefore extensive. A failure to consider

such a motion will not necessarily advance the fairness of the trial nor be in the

interests of judicial economy. Indeed, an unheard application for judicial review of

detention could cause irremediable harm to the accused and call into question the

overall fairness of the proceedings. In this regard, if dismissed, this will enable the

trial to proceed without the semblance of unfairness, while if upheld, the Chamber

avoids injustice to the accused and the waste of judicial resources. Such an approach 169

is thus generally in the interests of the fair administration of justice.

83. It is, however, not suggested that the right to be heard on such a motion

overrides the right of the Trial Chamber to regulate its proceedings to ensure that the

trial proceeds in a fair and expeditious manner. But, the Chamber should consider the

fundamental nature of this right in reaching its decision as to whether to consider the

matter. It must weigh this up together with the other factors that must be considered in

this balancing exercise under article 64 (2). The burden placed on the Trial Chamber

pursuant to this provision requires it to ensure that the fair administration of justice is

upheld at all times. In some cases, this may mean that the Trial Chamber may have to

exercise its discretion in favour of hearing a motion, even where the party in question

has failed to take advantage of earlier opportunities offered by the Chamber. This is

the case where there would be no effective remedy for the violation of the accused

person's rights at the end of the trial. ^ It would not be enough to say that the accused

person has a right to compensation at the end of the trial if the violations against him

were such as to warrant a termination of the proceedings at an earlier stage. Therefore,

in appropriate cases, the Trial Chamber must hear a motion simply because it is in the

interests of the administration of justice to do so. The Trial Chamber must not abuse

^^ See the approach adopted in ICTR, Appeals Chamber, Prosecutor v. Barayagwiza, "Decision", 3 November 1999, ICTR-97-19-AR72, para. 72. The Appeals Chamber in deciding that the motion filed by the accused requesfing a stay of proceedings on the grounds of gross violations of fundamental human rights was admissible stated: "Given that the Appeals is of the opinion that to proceed with the trial of the Appellant would amount to an act of injustice, we see no purpose in denying the Appellant's appeal, forcing him to undergo a lengthy and costiy trial, only to have him raise, once again the very issues currently pending before this Chamber. Moreover, in the event the Appellant was to be acquitted after trial we can foresee no effective remedy for the violation of his rights." ^^ ICTR, Appeals Chamber, Prosecutor v. Barayagwiza, "Decision", 3 November 1999, ICTR-97-19-AR72, para. 72.

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its discretion, but rather must be flexible in its assessment of the competing interests

and must balance them carefully.

84. In this case, the Trial Chamber failed to give sufficient weight to the nature of

the Defence Motion. If it had done so, together with the other factors, it would have

seen the need to consider the matter on its merits. The Appeals Chamber has stated

that "human rights underpin the Statute [...] first and foremost, in the context of the

Statute, the right to a fair trial, a concept broadly perceived and applied, embracing

the judicial process in its entirety". " In this context, it is difficult to conceive how

the issues underlying the Defence Motion, i.e. an allegation of unlawful detention,

which is of such a fundamental nature, would not have an impact on the concept of a

fair trial, and which, together with the other issues, would not have led the Trial

Chamber to consider it on the merits. The Trial Chamber stated that "[i]t is in the

interests of all, and primarily the suspects who have been deprived of their liberty,

that the issue of the possible unlawfulness of their detention be raised and addressed

as early as possible during the pre-trial phase". ^ Expedition is certainly in the

interests of suspects, as long as there is no impact on their right to liberty and it does

not deprive them of the right to be heard by a court of law. For the sake of

expeditiousness, Mr Katanga was denied the right to be heard on an issue of a

fundamental nature and directly related to the deprivation of his liberty.

(d) Mr Katanga's Strategy

85. Regarding his strategy, Mr Katanga argues:

The Defence was cautious in its treatment of the issue of stay of proceedings given the radical nature of this remedy. The Defence was concerned to ensure that such a motion should be filed on a proper foundation and with a proper legal and evidential basis. It considered the matter one of complexity. It also had to consider carefully the appropriate moment for seeking a declaration for the purposes of mitigation and compensation, matters which may properly arise at a later stage in the proceedings. The final decision to file its motion was deferred until it had gathered all the relevant elements. This appeared wise also in the light of the correlation between this issue and the issue of the admissibility of

^" Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, "Judgment on the Appeal of Mr Thomas Lubanga Dyilo Against the Decision on the Defence Challenge to the Jurisdiction of the Court Pursuant to Article 19 (2) (a) of the Statute of 3 December 2006", 14 December 2006, ICC-01/04-01/06-772 (0A4), para. 37. ' ^ Impugned Decision, para. 40.

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the case. Both depended in different ways on the intentions of the DRC in detaining the accused. ^

86. He goes on to argue that:

What is in issue here is a right, not an obligation, to access court for the redress of violations of fundamental rights. Depriving the accused of the ability to file a motion on violations of his rights at the time his defence deems appropriate: when in possession of all relevant elements, undermines the very essence ofthat right. The Defence must be afforded a degree of discretion in this respect as to the timing of the exercise of the right. Filing a motion prematurely can have the effect of both ensuring its failure for not having provided sufficient elements, and it could attract criticism from the Trial Chamber for filing a motion without proper foundation, in ignorance of the actual merits. It is submitted that it is both in the interests of justice and the serenity of proceedings to allow this measure of discretion. Imposing a time limit without regard to the difficulties of an accused proving a matter of abuse giving rise to a radical remedy therefore impairs the essence of the right to address such abuse. ^

87. He also argues that "[t]he time for the submission of a motion must lie within

the discretion of a party, subject to restrictions imposed by the Statute, Rules and

Regulations of the Court."*^^ The Trial Chamber found that "any strategic reasons

which could account for the filing of submissions at specific times in the proceedings

cannot in themselves justify the late filing of motions such as the one currently at

issue."^^^ We do not necessarily disagree. Although participants must be allowed

some discretion to deciding how to conduct their cases, this cannot override the

Chamber's duty to regulate the proceedings within the confines of the law. It is true

that counsel strategy may be validly circumscribed by the provisions of the ICC

statutory scheme, ethical considerations^^^ and properly exercised discretion by a

Chamber. ^

88. The question here is whether the Trial Chamber correctly took into account Mr

Katanga's right to have a certain strategy. In this respect, although in a different

' ^ Document in Support of the Appeal, para. 29. ^^ Document in Support of the Appeal, para. 30. ^^ Document in Support of the Appeal, para. 37. ^^ Impugned Decision, para. 64. ^ ° Egs Code of Professional Conduct for Counsel, 2 December 2005, ICC-ASP/4/Res.l, art. 5 (counsel must exercise mission before the International Criminal Court with integrity and diligence, honourably, freely, independentiy, expeditiously and conscientiously); art. 14 (counsel must abide by the client's decisions concerning the objectives of his or her representation as long as they are not inconsistent with counsel's duties under the Statute, the Rules of Procedure and Evidence, and this Code); art. 24 (3) (counsel shall not deceive or knowingly mislead the Court). ^^ E g article 64 (2) of the statute.

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context, the Appeals Chamber has stated that "[a]s a rule, counsel is best placed to

appreciate the needs of a case, especially the time needed for going into matters at

issue in the way expected of counsel."^^^ Accepting that proceedings at the ICC are

not the same, one may also note that the ICTR Appeals Chamber stated that "the

proceedings at the Tribunal are essentially adversarial and it is the parties who are

primarily responsible for the conduct of the debate. A Trial Chamber cannot dictate to

a party how to conduct its case." ^^ Indeed, the ICTY Appeals Chamber has also

stated that "as a general principle, an accused's right to a fair trial is infringed when

counsel admittedly does not understand the case of his client and fails to prepare a

proper defence strategy." " It has been found to be a violation of counsel's duty of

reasonable diligence to his/her client to not make "appropriate use of all mechanisms

of protection and compulsion available under the Statute and the Rules of the

International Tribunal to bring evidence on behalf of an accused before the Trial

Chamber." ^^ Therefore, it is clear that counsel is entitled, and indeed should, ensure

that he or she has a strategy for how he or she will defend a client.

89. We have already noted that Mr Katanga could have advised the Trial Chamber

of his forthcoming motion at an earlier stage, but that, based on the lack of certainty

as to how the proceedings were to be conducted, he was not obliged to do so. ^

Again, we do not find that a counsel has an unlimited right to strategise at the expense

of the trial as a whole, but he must have a certain right. There is a difference between

strategic decisions that are made as part of an overall defence strategy to the case and

decisions that amount to strategic efforts to undermine the conduct of proceedings.

The timing of the Defence Motion may have been part of Mr Katanga's strategy but is

not in itself an effort to undermine the proceedings. Although it is not that it should

have been the sole reason why the Defence Motion should have been considered on

^ ^ Prosecutor v. Thomas Lubanga Dyilo, Appeals Chamber, "Decision of the Appeals Chamber on the Defence application for an extension of time of 9 May 2007", 11 May 2007, ICC-01/04-01/06-903, (OA 8), para. 3. ' ^ ICTR, Ferdinand Nahimana et al. v. The Prosecutor, Appeals Chamber, "Judgement", 28 November 2007, ICTR-99-52-A, para. 124, footnote 289. See also ICTR, Appeals Chamber, Prosecutor v. Simon Bikindi, "Judgement", 18 March 2010, ICTR-01-72-A, para. 22. ^" Prosecutor v. Momcilo Krqjisnik, Appeals Chamber, "Decision on Appellant Momcilo Krajisnik's Motion to Present Additional Evidence," 20 August 2008, IT-00-39-A, para. 19. 175 iQjY^ Appeals Chamber, Prosecutor v. Zoran Kupreskic et a l . Appeals Chamber, "Judgment", 23 October 2001, IT-95-16-A, para. 50, citing ICTY, Prosecutor v. Dusko Tadic, Appeals Chamber, "Decision on Appellant's Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, IT-94-1-A, para. 47. ^ ^ See above, para. 78.

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its merits by the Trial Chamber but his counsel's right to develop a strategy should

have been properly weighed against the other factors at issue.

(e) New Information

90. Mr Katanga also refers to the existence of new information that came to light in

the Hearing of 1 June 2009, which gave him further incentive to file the Defence

Motion. ^ The Trial Chamber stated that despite Mr Katanga's argument that this

information "was decisive in the filing of the Motion [...] [i]t nevertheless appears

that the arguments set out in the latter rtly for the most part on information which was

already available to the Defence at the Pre-Trial phase. Moreover, the Chamber notes

that, as of 28 August 2008, the Defence had received the requested information from

the DRC authorities" (emphasis added). ^^ In this way, the Trial Chamber itself left

open the possibility that some information was new, although it did not reveal the

nature of that new information. Mr Katanga reiterated, on appeal, that "the DRC

provided information on 1^ June 2009 which was decisive to the Defence decision to

file the motion: i.e. that it had not carried out investigations against the accused."^^^

91. The Majority considered that as Mr Katanga had not substantiated his

submission that there was new information, it would defer to the findings of the Trial

Chamber on this question. ^ In this regard, there are two issues that merit

consideration: first, whether the information raised in the Hearing of 1 June 2009 was 1 o i

indeed new (there seems to be disagreement as to whether this is the case ); and

second, even if the information was not new, whether Mr Katanga could have

reasonably expected that during the Hearing of 1 June 2009 new information could

potentially come to light.

' ^ Document in Support of the Appeal, para. 37. ^^ Impugned Decision, para. 61. ' ^ Document in Support of the Appeal, para. 26. Later he refers to his decision being "partly based upon" the information provided and that it "was a significant factor in its final decision to file the mofion." And, that "[t]he informafion provided by the DRC at the hearing on admissibility was of such a compelling nature as to give final force to the importance of submitting the motion." Document in Support of the Appeal, paras 29, 39. ^^ Majority Judgment, para. 75. ^^ Impugned Decision, para. 61, Document in Support of the Appeal, paras 26, 29 and 39, "Prosecufion response to Katanga's appeal against the 'Decision on the Motion for the Defence for Germain Katanga for a Declarafion on Unlawful Detenfion and Stay of Proceedings", 11 March 2010, ICC-01/04-01/07-1957-Conf-Exp; a redacted version was filed at the same fime as ICC-01/04-01/07-1957-Red, paras 5, 28.

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92. By reviewing the observations of the DRC which were transmitted to the ICC

Registrar, ^ one may observe that the information provided therein was confined to

copies of the warrant of arrest for Mr Katanga and documents related to the extension

of his provisional detention. The information thus provided was inconsistent and was

limited to different legal characterisations of the alleged criminal conduct of Mr

Katanga and to different locations in the Democratic Republic of the Congo. This

made it reasonable for the Defence to seek more specific and thus useful information

for its motion when the proper opportunity became available, this arising in the

Hearing of 1 June 2009. It was logical that Mr Katanga wait until he had the

opportunity to hear from the DRC 'in person' before he filed his motion, especially

since this motion directly involved the actions of those authorities. ^ Certainly, in our

opinion, the expectation that during the Hearing of 1 June 2009 new information

could potentially come to light was reasonable. Our review of the transcripts of the

Hearing of 1 June 2009 show some new information at least in comparison with that

provided by the DRC in the DRC Annex. " The manner, however, in which the Trial

Chamber as well as the Majority treated this question is marginal. More surprising is

the approach endorsed by the Trial Chamber in deciding on this matter. In reaching its

decision, the Trial Chamber, placed itself in the position of Mr Katanga and assessed,

on his behalf, whether the information that arose during that hearing was important

^ ^ ICC-01/04-0l/07-708-Conf-Exp-Anx2-tENG, registered on 27 August 2008 (hereinafter: "DRC Annex"). We are aware of the confidential ex parte nature of this filing. However, we do not consider how we refer to it to be inconsistent with the confidential ex parte nature of the document as such. ' ^ See also, the Application for Leave to Appeal, para. 26: "The Defence was not in possession of the relevant information prior to the decision confirming the charges despite its best efforts to obtain it. The Defence submits that it had good grounds to wait until it had all relevant information. The Defence submits that it would be unprofessional to submit such an application unless it is fully informed of all circumstances surrounding the arrest of the accused. For this, it was perceived necessary to hear the views from the DRC. The Defence made efforts to contact DRC authorities and to get documents from them, but to no avail. Therefore, the Defence submits that it was entirely appropriate to wait until after 1 June 2009, when the DRC authorities made their submissions." The comments made by Mr Katanga's counsel during the Hearing of 1 June 2010 are also noted. On the Presiding Judge stating that it would have been more expeditious for him to file the Defence Motion earlier, Mr Katanga's counsel stated: "[...] We had thought of it, but we felt that it was appropriate to wait unfil we heard what the representatives of the democratic republic would say, and I think having heard what has been said this afternoon, Mr President, I hope you can see the sense of that, but may I say I've heard what you said, and we will do our utmost to get this motion before you really as soon as we can." Hearing of 1 June 2010, pp. 118-119. ^" See for instance the informafion provided in the DRC Annex, pp. 19-20 and reiterated in the Reasons for Decision on Admissibility, para. 68. When comparing this informafion with the statements made by the DRC in the Hearing of 1 June 2009, one could potenfially consider that the latter were relatively new. According to the information provided in the DRC Annex, there appear to be charges against Mr Katanga for crimes against humanity committed in Bogoro. Later, in the Hearing of 1 June 2009, the DRC confirmed that there was nothing to that effect. See for example, Hearing of 1 June 2009, p. 78, lines 4-5, p. 79, lines 11-13, 15-22.

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for him. In this respect, one may question whether the Trial Chamber was in a better

position than Mr Katanga to assess whether the information which came to light was

decisive for him for the sake of a successful motion.

(f) Mr Ngudjolo Chui's Right to a Trial Without Undue Delay

93. The Trial Chamber stated that:

[u]nder article 64(2) of the Statute, the Trial Chamber must ensure that the trial is fair and expeditious and conducted with full respect for the rights of the accused. Moreover, in the instant case, which involves two accused persons, the Chamber must ensure that Mathieu Ngudjolo's right to be tried without undue delay is also respected [citation omitted].^ ^

94. Mr Katanga argued that the Trial Chamber erred in making this statement and

that the Trial Chamber should not compromise his right to raise an issue simply

because he has a co-accused.^^^ The Majority Judgment found as follows:

The Appeals Chamber acknowledges that the Trial Chamber's reference to Mr Ngudjolo Chui's rights may ex facie give the impression that it considered this factor when deciding the case. The Appeals Chamber, nevertheless, takes the view that reference to Mr Ngudjolo Chui's rights is in itself not improper, given that the trial is a joint one. It would have been improper if the Trial Chamber relied on Mr Ngudjolo Chui's rights at the expense of Mr Katanga's rights. However, in the view of the Appeals Chamber, the Trial Chamber's analysis shows that this was not the case. The reference to Mr Ngudjolo Chui's rights did not in any way affect the Trial Chamber's conclusions as to the timeliness of the Defence Motion.[...].^^^

95. Noting the factors that the Trial Chamber then considered, the Appeals

Chamber concluded that the reference made by the Trial Chamber "was not a factor

that was considered to the detriment of Mr Katanga's rights."^ ^

96. It is true that it is not possible to speculate whether the Trial Chamber relied on

this factor in reaching its overall conclusion. However, the fact that the Trial Chamber

referred to Mr Ngudjolo Chui's right to a trial without undue delay, in the context of a

decision taken on the basis of a need for expedition indicates that the Trial Chamber

took this factor into account. This was an error. Taking such an issue into account

would have as a consequence that joint trials p^r se are not possible (clearly that is not

^^ Impugned Decision, para. 42. ' ^ Document in Support of the Appeal, para. 41. ^^ Majority Judgment, para. 83. ^^ Majority Judgment, para. 84.

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the case at the ICC)^^^ or it would imply that in joint trials there are legitimately

limited procedural rights for co-accused. The result would be that a co-accused could

potentially not raise violations of his or her personal rights as they would possibly

have to be rejected because of the rights of the other accused. In our view, although

the Trial Chamber did concentrate on the opportunities that were available to Mr

Katanga to file the Defence Motion, one may also conclude that its reference to this

issue, meant that it gave it some weight and that it based its finding on the need for

expeditiousness also on the basis of Mr Ngudjolo Chui's rights. Having done so, in

our view, it erred.

Mr Katanga's Requests Related to Compensation and Mitigation of Sentence

97. Finally, we cannot but express concerns regarding the issues of compensation

and mitigation of sentence as identified in the relief sought in the Defence Motion. As

seen above, the Defence Motion contained two requests, the first of which related to

compensation and mitigation of sentence, and the second of which was a request for a

stay of the proceedings.^^^ The Impugned Decision did not explicitly address the

former request, although in the operative part, it "DISMISSES the [Defence] Motion",

i.e., in its entirety.^^^ Although the Majority Judgment found that the issue was moot

because the Trial Chamber did not address the motion on its merits, it is still a valid

concern that the Impugned Decision might have an impact on compensation and

mitigation despite the specific procedures in place for these issues (article 85 and

rules 173-175 regarding compensation and articles 76-78 and rules 145-148 related to

the sentence stage).

Conclusion in Relation to Discretion

98. Deciding, nearly five months after the filing of the Defence Motion, that it was

filed too late, when there was no clear and express policy of the Chamber in place,

including a time limit for the filing of the Defence Motion, and based on a scheme

that was set out ex post facto in the Impugned Decision, is not a correct use of the

discretionary powers of the Trial Chamber. The fact that the Trial Chamber wished to

^^ See rule 136 (dealing with "[j]oint and separate trials"). ^ ° Defence Motion, p. 39. ^^ Impugned Decision, p. 23. ^^ Majority Judgment, para. 66.

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ensure expeditious proceedings is, in and of itself, acceptable. Yet, the Trial Chamber

failed to properly satisfy the criterion of certainty. It also failed to properly weigh the

need for expeditiousness and to take account of the fundamental nature of the right

which Mr Katanga was asserting, Mr Katanga's strategy and new information. In

these circumstances, weighing all factors together, the Trial Chamber should have

considered the merits of the Defence Motion.

V. OVERALL CONCLUSION

99. The Trial Chamber erred in dismissing the Defence Motion as a result of how it

considered all of the circumstances of this case. It erred in establishing a so-called

requirement that such motions should be filed at the pre-trial stage, in articulating that

requirement for the first time in the Impugned Decision and in applying that

requirement retroactively to the Defence Motion in the same decision and to the

detriment of Mr Katanga. The Trial Chamber also erred in the exercise of its

discretion by failing to properly balance the factors contained in article 64 (2) and, in

particular, by placing too much emphasis on the requirement for expedition without

considering the rights of the accused. The Impugned Decision is vitiated by all of

these errors, taken together and considered within all the relevant circumstances of the

case. In this respect, the Trial Chamber erred in relation to all stages, taken

individually and as a whole, and Mr Katanga was ultimately prejudiced by the

dismissal of his motion.

100. As to the result of our findings, the Appeals Chamber may confirm, reverse or

amend a decision (rule 158 (1)). The Trial Chamber erred in fact and in law when it

did not consider the Defence Motion on its merits having found it inadmissible for

having been filed at too advanced a stage in the proceedings. In view of our

conclusions, we would reverse the Impugned Decision and remit the matter to the

Trial Chamber to issue a new decision on the Defence Motion.

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

Judge Erkki Kourula Judge Ekaterina Trendafilova

Dated this 28* day of July 2010

At The Hague, The Netherlands

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