Tuesday, 8 March- The Chamber's reasons to refuse Thomas Lubanga's Defence application to halt the trial are now public. In a written decision, issued confidentially on the 23rd of February, the judges said that ordering a permanent stay of the proceedings for abuse of process is an "undoubtedly drastic remedy to be reserved strictly for those cases that necessitate", citing as an example any action by the Prosecutor that threaten basic human rights of the accused. Having said that, the Chamber considered that in this case, the prosecutorial misconduct alleged by the Defence has not breached the rights of the accused to a fair trial by disabling "the accused from properly defending himself."
The judges are of the view that "the Chamber has responded comprehensively to the defence submissions so as to ensure that the totality of the available evidence on the relevant intermediaries is explored during the trial. Four intermediaries have been called to give evidence; the investigators who were principally responsible for each of them have testified; and the prosecution has indicated that it has effected disclosure of all relevant materials, following various rulings by the Chamber," reads the decision.
Throughout its case, the defence has submitted that four intermediaries employed in the DRC by the Office of the Prosecutor incited witnesses to lie and that they demonstrated other forms of inappropriate behaviour. It is been also said that members of the OTP knew that there were doubts as to the integrity of these individuals and thereafter failed to investigate whether the relevant evidence was reliable. "This is undoubtedly an important and a highly contentious issue in the case," says the judge's decision, "but in the judgment of the Chamber the alleged abuse on the part of the prosecution, even taken at its highest, would not justify staying the case at this stage."
The judges concludes by saying that the Chamber will be able, at the end of the case, to review in detail the alleged impact of the involvement of the intermediaries on the evidence as well as the instances in which it is suggested the prosecution failed to ensure that it was submitting reliable evidence. Similarly, the judges will also evaluate the occasions in which the defence allege that the prosecution failed to disclose material in a timely manner.
Defence vs Prosecution
Thomas Lubanga's Defence application (submitted on 10 December 2010) maintained that a fair trial of the accused was rendered impossible on account of "serious and irretrievable prejudice to the judicial process of seeking and establishing the truth."
According to the defence, five main elements led to this "irretrievable prejudice" to the fair trial of Mr Lubanga: i) the role of four "intermediaries" who acted for the prosecution; ii) the Prosecutor's negligence in failing properly to investigate the evidence that he has introduced during the trial; iii) the Prosecutor's deliberate failure to discharge his disclosure and inspection obligations; iv) the part played by certain participating victims; and v) the failure on the Prosecutor's part to act fairly and impartially.
The Prosecutor's arguments (tendered on 31 January 2011) suggested that the defence application should be rejected in its entirety as it "constitutes an abuse of the time of the Court because the accused has advanced unsupported or exaggerated submissions". The Office of the Prosecutor argued that the Chamber should first consider whether other steps will resolve the suggested infringements of the rights of the accused and ensure a fair trial. The OTP was of the view that the staying of proceedings is an exceptional remedy which should only be used when no other means of achieving a fair hearing are available and given the importance of this issue, the Chamber should only stay the case on the basis of "clear and convincing evidence".
The prosecution also submitted that none of the intermediaries played a decisive role in the investigations and that the OTP had no reason to suspect that any of them had incited witnesses to lie. Similarly, the Prosecutor argued that "there is conflicting evidence as to whether or not some of the witnesses called in this case have lied." The OTP suggests that the witnesses that are from the Hema community, the Lubanga's ethnic group, could also have received pressures to change their testimony in favor of the accused and therefore "these are all matters that should be resolved at the conclusion of the case."
The role of the four intermediaries
Since January 2010 the position of some of the OTP intermediaries has been a key element of the accused's defence. Throughout its case, Lubanga's lawyers have alleged that the individuals who helped the prosecution to contact witnesses in DRC procured false evidence in order to secure the accused's conviction. As a result, the Chamber called four intermediaries and two investigators to give evidence on these allegations.
Intermediary 316
The defence team bases its allegation against Intermediary 316 on the testimony of Witness 15 and Defence Witness 16. According to what the youngsters said in court, Intermediary 316 induced them to make false statements. In particular, Defence Witness 16 told the judges that the intermediary persuaded him to state falsely to the investigators that he had been a soldier in the UPC, the political-military movement alleged lead by Mr. Lubanga. As he stated on 8 January 2010, Intermediary 316 offered him a small amount of money for telling lies and promised him he would leave Bunia to go abroad.
"During the meeting [with intermediary 316] we planned to tell lies," said Defence Witness 16. "The lie was to say he [Thomas Lubanga] had enrolled children in the army and I myself was amongst them. (...) He gave me some money and I agreed to lie. He said I am going to leave Bunia and go to the country of the white people."
The prosecution affirms that Intermediary 316 acted for two trial witnesses and it contests the suggestion that his role was in any sense decisive. According to the OTP, the intermediary's primary task was providing security information. The prosecution also submits that there is an absence of evidence that the prosecution knew, or had reason to believe, that Intermediary 316 had asked witnesses to lie or fabricate evidence.
Intermediary 316 testified in court and denied the accusations: "the allegations against me are all false," he said.
Intermediary 321
Intermediary 321 worked for the prosecution for more than a year and introduced several witnesses to the office, in particular former child soldiers: Witness 157, 213, 294, and 298. Lubanga's lawyers submitted that all of the witnesses introduced to the Office of the Prosecutor by Intermediary 321 have made manifestly false statements about their military activities in the UPC. The defence based its allegations on the evidence of defence Witness 3 and 4 as well as the contradictory statements made by Witness 298, 297, 213 and 294.
"Today I am saying the truth. I made a mistake. I came here to correct my mistake," said Defence Witness 3 to the judges. "[The investigators] asked me questions. They showed me pictures of Thomas Lubanga and I said: yes, he is Thomas Lubanga, but I didn´t know him. Even today I don't know him. I was acting, saying what we had been invented. It was a money issue."
The Prosecutor affirms that there is no sustainable basis for alleging that Intermediary 321 encouraged witnesses to lie, or that the prosecution had been alerted to this possibility.
Intermediary 321 testified in court on the 1st of November in private session.
Intermediary 143 and Intermediary 31
Intermediary 143 introduced 24 witnesses to the Office of the Prosecutor, five have given evidence in this trial. The defence submitted that Intermediary 143's witnesses "have all made manifestly mendacious statements". Additionally, it is suggested that the Prosecutor was in possession of information that raised serious doubts about Intermediary 143's impartiality and reliability.
The prosecution suggests there is no sustainable basis for alleging that he encouraged witnesses to lie or that the prosecution was aware of, or had been alerted to, this possibility.
Intermediary 31 acted as the intermediary for a number of witnesses, and it is said that he was employed in that general role between 2005 and 2008. The defence submits that there is reason to suggest that he encouraged potential witnesses to provide false evidence.
The prosecution argues that there is no evidence to demonstrate that Intermediary 31 induced witnesses to lie or to fabricate evidence. Similarly, the prosecution resists the suggestion that he played a decisive role in its investigations.
The most serious allegation
The defence suggests that Intermediary 316 had taken his orders from the Congolese President whilst working as a prosecution intermediary. The defence submits that the prosecution knowingly became the Congolese government's instrument, enabling it to abuse these trial proceedings to the prejudice of the accused (who is the political opponent of the Congolese President, the individual said to have initiated Mr Lubanga's arrest and transfer to the ICC).
However, in the view of the Chamber, these alleged facts, "are incapable of substantiating the suggested inference that the Office of the Prosecutor was aware that it had been infiltrated by agents of the Congolese President, who was seeking, by introducing false evidence, to secure a conviction of the accused." "To this extent, the defence theory of instrumentalization has not been made out on the evidence advanced," reads the decision.
