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Cour Pénale Internationale International Criminal Court Original ICC-01/04-01/06-2773-Red-tENG 02-02-2012 1/290 FB T Cour Pénale Internationale International Criminal Court Original: French No.: ICC-01/04-01/06 Date: 15 July 2011 TRIAL CHAMBER I Before: Judge Adrian Fulford, Presiding Judge Judge Elizabeth Odio Benito Judge René Blattmann SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE PROSECUTOR v. TH01S4AS LUBANGA DYILO PUBLIC REDACTED VERSION With confidential Annex 1, public redacted Annex 2 and public Annex 3 Closing submissions of the Defence Source: Defence team of Mr Thomas Lubanga No. ICC-01/04-01/06 1/290 Ofticml Cour! D'ajisliuiiUi ICC-01/04-01/06-2773-Red-tENG 02-02-2012 2/290 FB T 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 Ms Catherine Mabille Ms Fatou Bensouda Mr Jean-Marie Biju-Duval Mr Marc Desalliers Ms Caroline Buteau Legal Representatives of the Victims Legal Representatives of Applicants Mr Luc Walleyn Mr Franck Mulenda Ms Carine Bapita Buyangandu Mr Jean Chrysostome Mulamba Nsokoloni Mr Paul Kabongo Tshibangu Ms Paolina Massidda Mr Hervé Diakiese Mr Joseph Keta Orwinyo Unrepresented Victims Unrepresented Applicants for Participation/Reparations The Office of Public Counsel for The Office of Public Counsel for the Victims Defence States' Representatives Amicus Curiae REGISTRY Registrar Defence Support Section Ms Silvana Arbia Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section No. ICC-01/04.01/06 2/290 ICC-01/04-01/06-2773-Red-tENG 02-02-2012 3/290 FB T PART I: PRETUDICE TO THE INTEGRITY OF THE TRIAL AFFECTING THE RELIABILITY OF ALL EVIDENCE PRESENTED BY THE PROSECUTION. RENDERING ANY CONVICTION BEYOND ALL REASONABLE DOUBT IMPOSSIBLE 1. By an application dated 10 December 2010, the Defence informed the Chamber of serious prejudice to the integrity of the judicial proceedings and breaches of fair trial rules. ^ The Defence argued that the prejudice and breaches were of such gravity as necessarily to entail the immediate and permanent stay of proceedings. 2. By decision of 23 February 2011, ^ the Chamber rejected the Defence application, finding that the gravity threshold required for a stay of proceedings had not been reached and that it was appropriate to continue the trial to its conclusion. Without ruling on the merits of the Defence allegations,^ the Chamber essentially held that even if the accusations against persons acting on behalf of the Office of the Prosecutor, Prosecution witnesses, and participating victims were proved to be wholly accurate, the resulting situation would not render the continuation of the trial impossible. "^ The Chamber stated that at the appropriate time ~ at the end of the trial - it would consider the merits of these allegations and, if necessary, would draw the necessary conclusions with regard, inter alia, to the reliability of the evidence presented. 3. Accordingly, without rehearsing herein its previous submissions, the Defence requests the Chamber to consider, mutatis mutandis, the body of facts and UCC-01/04-01/06-2657-Conf-tENG. 2 ICC-01/04-01/06-2690-Conf. 3 Save for the allegation that the Office of the Prosecutor knowingly allowed itself to be infiltrated and used by the Congolese authorities for political ends, which the Chamber rejected: ICC-01/04-01/06- 2690-Conf, paras. 193 and 199. 4 ICC-01/04-01/06-2690-Conf, para. 218. No. ICC-01/04-01/06 3/290 Officud Court l)'Ojj<liüiou ICC-01/04-01/06-2773-Red-tENG 02-02-2012 4/290 FB T arguments set out in the Defence application for a permanent stay of the proceedings. 4. Owing to their scope and gravity, the inevitable effect of the prejudice caused to the integrity of the judicial proceedings and of the breaches of fair trial rules as described in the above-mentioned application is to render a conviction beyond all reasonable doubt impossible. The observations set out hereinafter are intended to summarise the principal prongs of this argument. 5. Firstly, evidence was brought to show that persons acting on behalf of the Office of the Prosecutor, particularly Intermediaries W-0316, W-0321, W-0143, and W-0031, acting individually or in concert, elicited and organised the presentation of false testimony intended to secure the conviction of the Accused.^ The direct involvement of these persons acting on behalf of the Office of the Prosecutor in the presentation of false testimony before the Chamber was acknowledged by Witnesses W-0015, DOl-0016, DOl-0003 and DOl-0004^ and clearly shown for all the Prosecution witnesses presented as former child soldiers. All these witnesses made manifestly mendacious statements. ^ Witness DOl-0036 confirmed the mendaciousness of these testimonies, the manipulation that these victims were subjected to by persons acting on behalf of the Prosecutor, and the Prosecutor's deliberate choice not to conduct thorough investigations into this manipulation.^ 6. The fact that a significant number of the Prosecution witnesses provided false testimony at the instigation of persons acting on behalf of the Office of the Prosecutor automatically casts extremely serious doubts on the reliability of the statements of the other witnesses in regard to whom proof of such manipulation could not be formally provided. 5 ICC-01/04-01/06-2657-Conf-tENG, paras. 27-199. 6 ICC-01/04-01/06-2657-Conf-tENG, paras. 34-61 and 81-101; see also infra. Part III. 7 ICC-01/04-01/06-2657-Conf-tENG, paras. 27-199; see also infra. Part III. 8 See infra, analysis of the statements of DOl-0036, paras. 326-332. No. ICC-01/04.01/06 4/290 O^tii^Uil Cc^url 'FriÀU>h!hi^n ICC-01/04-01/06-2773-Red-tENG 02-02-2012 5/290 FB T 7. The aforementioned persons acting on behalf of the Office of the Prosecutor, who were directly involved in the investigations and frequently called upon to interact with witnesses for a variety of reasons, became aware of the identities of all the witnesses called and had numerous opportunities to approach them. The fact that these intermediaries were simultaneously acting on the instructions of the Congolese authorities^ or of organisations involved in the representation of victims before the Court^° necessarily leads to the inference that they very probably extended or sought to extend their fraudulent activities to all the Prosecution witnesses involved in thç present case. 8. It is worth recalling that the Defence was not informed of the possibility that subornation of witnesses may have occurred until after the commencement of trial." Kept in the dark until an advanced stage of the trial as to the identity of the intermediaries concerned and the details of their contact with the witnesses,^^ the Defence found it impossible to conduct all those investigations that would have enabled it, if necessary, to bring to light other acts of subornation. The Defence was unable to begin its investigations into this matter until after most of the Prosecution witnesses had appeared before the Chamber. In such circumstances, it was impossible for the Defence to examine these witnesses effectively on the circumstances in which they had been called to testify. 9 For example, ICC-01/04-01/06-2657-Conf-tENG, paras. 69-71. 10 For example, ICC-01/04-01/06-2657-Conf-tENG, paras. 139-142 and 175-178. 11 In the case of W-0316, this came to light during the testimony of W-0015, on 16 June 2009: T-192- CONF-FRA-CT. As regards the other intermediaries, the Defence became aware of these acts by chance in the course of its investigations. 12 The identity of the intermediaries was revealed to the Defence on the following dates: W-0316: 16 June 2009 during the testimony of Witness W-0015; W-0143: 8 October 2011, after the Chamber's order of 6 July 2010; W-0321: 2 July 2009. The intermediary status of W-0031 was revealed during his cross-examination by the Defence on 2 July 2009. It was only on 7 June 2010 that the Office of the Prosecutor provided the Defence with a record of the contacts that had existed between the witnesses and Intermediaries W-0031, W-0321, W-0143 and W-0316, which was an incomplete version, as ICC- 01/04-01/06-2466-Conf-AnxB. The latest modified version, which was more comprehensive, was disclosed to the Defence on 24 November 2010. See also EVD-DOl-01039. No. ICC-01/04-01/06 5/290 ICC-01/04-01/06-2773-Red-tENG 02-02-2012 6/290 FB T 9. It follows that the duly proven fraudulent acts of persons acting on behalf of the Prosecutor impair the reliability not only of the statements of the witnesses identified as having been thus manipulated, but also, by extension, of all the evidence presented by the Prosecutor in support of his charges. 10. Secondly, evidence was brought to show that a high-ranking Congolese politician (Victim a/0270/07), who is a member of a political party which supports President Kabila, elicited and organised the presentation of false evidence (by Victims a/0225/06 and a/0225/06) before the Chamber, and himself made false statements before the Chamber intended to secure the conviction of the Accused.^^ What is more, evidence was brought to show that this politician pressured Defence witnesses in an attempt to obstruct the revelation of his fraudulent acts.^^ Witness DOl-0036 also reported that the Congolese authorities had retaliated against him as a result of his testimony.^^ 11.
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