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V. ]Oseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongmwen

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V. ]Oseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongmwen ICC-02/04-01/05-318 20-10-2008 1/20 VW PT Original: English No.: ICC-02/04-01/05 Date: October 2008 PRE-TRIAL CHAMBER II Before: Judge Mauro Politi, Single Judge SITUATION IN UGANDA IN THE CASE OF THE PROSECUTOR v. ]oseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongmwen Public Document Submission of observations on applications for participation a/0014/07 to a/0020/07 and a/0076/07 to a/0125/07 Source: Michiel Pestman, Counsel for the Defence No. ICC-02/04-01/05 1/20 20 October 2008 ICC-02/04-01/05-318 20-10-2008 2/20 VW PT Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence Mr Luis Moreno Ocampo Mr Michiel Pestman Ms Fatou Bensouda Legal Representatives of Victims Legal Representatives Applicants Unrepresented Unrepresented Applicants for Participation/Reparation The Office of Public Counsel for The Office of Public Counsel for the Victims Defence Ms Paolina Massida States Representatives Amicus Curiae REGISTRY Registrar Defence Support Section Ms Silvan Arbia Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section Ms Fiona McKay No. ICC-02/04-01/05 2/20 20 October 2008 ICC-02/04-01/05-318 20-10-2008 3/20 VW PT I. OUTLINE OF THE PROCEDURE 1. On 22 November 2006, Pre-Trial Chamber II designated Judge Mauro Politi as Single judge, responsible for all victims' applications for participation in the Situation Uganda ("the Situation") and the case of the Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Ongwen ("the Case"). On 17 September 2008, in his two decisions on legal representation, appointment of counsel for the defence, criteria for redactions of applications for participation, and submission of observations on applications for participation a/00 14/07 to a/0020/07 and a/0076/07 to a/0125/07 ("Decisions of 17 September 2008"), Judge Politi appointed Mr. Michiel Pestman as (Ad Hoc) Counsel for the Defence ("Counsel"), "entrusted with representing and protecting the interests of the defence within the context and for the purposes of the proceedings on the Applications in the Situation and in the Case, pursuant to rule 89 of the Rules". 1 In the Decisions of 17 September 2008, Judge Politi ordered the Registrar to provide the Prosecutor and Counsel with a redacted copy of victims' Applications by Friday, 26 September 2008, and granted the defence until 10 October 2008 to submit their observations in the proceedings on the Applications for participation in both the Case and the Situation. 3. On 24 September 2008, both Situation and the Case, Counsel filed a "Request for leave to appeal the Decisions on legal representation, appointment of counsel for the defence, criteria for redactions of applications for participation, and submission of observations on applications for participation a/0014/07 to a/0020/07 and a/0076/07 to a/0125/07'' and a "Request that the appeal have suspensive effect in accordance with Article 82(3) of the Statute" ("Requests of 24 September 2008"). Counsel submitted that issues were involved, "that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which [ ... ] an immediate resolution by the Appeals Chamber may materially advance the proceedings."2 4. A decision on the Requests of 24 September 2008 was issued on 7 October 2008. In his "Decision on the Defence Request for leave to appeal dated 24 September 2008 and extension of time-limit for submission of observations on applications for participation a/0014 1 ICC-02/04-154 and ICC-02/04-01/05-154. 2 Article 82( 1)(d) of the Statute. No. ICC-02/04-01/05 3/20 20 October 2008 ICC-02/04-01/05-318 20-10-2008 4/20 VW PT to a/0020/07 and a/0076/07 to a/0125/07", filed in both the Situation and the Case ("Decisions of 7 October 2008"), Judge Politi rejected the Requests of 24 September 2008, somewhat enigmatically stating that the appointment of counsel for the defence "irrespective of the specific circumstances of the persons whose arrest is sought, far from affecting the fairness of the proceedings, is meant to ensure that none of such circumstances will result in the interests of the defence being neglected.". Counsel was granted 20 October 2008 to submit the observations on behalf of the defence. II. SUMMARY OF ARGUMENTS 5. In the past weeks, Counsel made several attempts to contact the persons against whom arrest warrants have been issued in the Case: Mr. Joseph Kony, Mr. Vincent Otti, Mr. Okot Odhiambo and Mr. Dominic Ongwen ("the suspects"). So far, these attempts have been fruitless. Counsel has not been able to obtain instructions from his supposed clients on how to proceed in the current proceedings. Counsel will, therefore, not file any substantive observations now, neither in the Case, nor the Situation. As explained earlier in the Requests of 24 September 2008, filing observations without specific instructions from the suspects would lead to a violation of the Code of Professional Conduct for counsel (the "ICC Code")3 and could seriously prejudice the rights of the defence. 6. Granting the applicants referred to in the Decisions of 17 September 2008 the right to participate in the proceedings, without having allowed the suspects to effectively challenge the applications, would be inconsistent with the rights of the suspects, and with a fair and impartial trial, as guaranteed by Article 67(1) of the Statute and other human rights instruments. 7. As the current proceedings clearly illustrate, the role of alleged victims in the pre-trial phase should be very limited. Counsel submits that alleged victims should not be allowed to participate in any of the pre-trial proceedings, except for those proceedings expressly mentioned in the Statute. Participation of alleged victims in the pre-trial phase disrupts the precarious balance between the rights of the parties. 3 Resolution ICC-ASP/4/Res.l, Adopted on the 3rd plenary meeting on 2 December 2005, by consensus. No. ICC-02/04-01/05 4/20 20 October 2008 ICC-02/04-01/05-318 20-10-2008 5/20 VW PT Ill. THE APPLICABLE LAW 8. Rule 85 of the Rules of Procedure and Evidence ("Rules") gives a definition of a victim: 'Victims' means natural persons who have suffered harm as a result of the commtsston any crime within jurisdiction of the Court; 9. Article 68(3) of the Statute offers persons who meet definition of Rule 85 the conditional right to present their "views and concerns" during proceedings: Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the court and a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence. 10. Rule 89(1) and (2) of the Rules established the procedure to be followed by alleged victims who want to participate in the proceedings before the Court: 1. In order to present their views and concerns, victims shall make written application to the Registrar, who shall transmit application to the relevant Chamber. Subject to the provisions of the Statute, in particular article 68, paragraph 1, the Registrar shall provide a copy of the application to the Prosecutor and the defence, who shall be entitled to reply within a time limit to be set by the Chamber. Subject to the provisions of sub-rule 2, the Chamber shall then specify the proceedings and manner in which participation is considered appropriate, which may include making opening and closing statements. 2. The Chamber, on its own initiative or on the applications of the Prosecutor or the defence, may reject the applications if it considers that the person is not a victim or that the criteria set forth in article 68, paragraph 3, are not otherwise fulfilled. A victim whose applications has been rejected may file a new application later the proceedings. 11. The Pre-Trial and Trial Chambers of the Court have adopted a broad approach to victims' participation, granting them a general right to participate in both the pre-trial and the trial phase of proceedings, while failing to reach agreement on the boundaries of that participation or on the criteria to apply in the proceeding of Rule 89(1) of the Rules. No. ICC-02/04-01/05 5/20 20 October 2008 ICC-02/04-01/05-318 20-10-2008 6/20 VW PT 12. The rights of the accused are laid down in Article 67 of the Statute: Rights of the accused 1. In the determination of any charge, the accused shall entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, equality: (a) [ ... ] (b) have adequate time and facilities for preparation of the defence and to communicate freely with counsel of the accused's choosing confidence; (c) [ ... ] (d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for (e) [ ..
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