Congolese war crimes accused Jean-Pierre Bemba and prosecutors at the International Criminal Court (ICC) are appealing a decision by trial judges to admit into evidence all materials contained in the prosecution’s List of Evidence submitted before the trial commenced.

Three days before the trial started, trial judges ruled that “any materials, including witnesses’ written statements and related documents previously disclosed to the defense and which will form part of the prosecution’s Revised List of Evidence are prima facie admitted as evidence for the purposes of the trial.” Judge Kuniko Ozaki issued a dissenting opinion to that of Judges Sylvia Steiner and Joyce Aluoch.

Subsequently, trial judges on January 26, 2011, allowed the prosecution and the defense to appeal “whether the legal framework of the ICC allows for prima facie admission into evidence of materials…including witnesses’ written statements and related documents previously disclosed to the defense and which form part of the prosecution’s Revised List of Evidence”. 

Defense counsel Aimé Kilolo-Musamba contends that the practical effect of the November 19, 2010 ruling by trial judges was that hundreds of pages of statements by prosecution witnesses were admitted “as evidence” in the case against Mr. Bemba, three days before the opening of the proceedings, and before any assessment had been made by the chamber of their probative value or prejudice to the accused. 

Mr. Kilolo-Musamba noted in his February 7, 2011  filing that an accused before the court had a right to be informed promptly and in detail of the nature, cause, and content of the charge against him. “The majority’s new regime of ruling on the admissibility of documents at the end of the proceedings means that it is only at this stage – and significantly after the close of the defense case – that the defense will know for the first time the precise nature of the prosecution evidence against him,” he argued. 

For his part, ICC Prosecutor Luis Moreno-Ocampo said majority trial judges made two errors. The first error is for failing to assess the admissibility of the evidence on an item-by-item basis. “By admitting all material referred to by the List of Evidence before the start of the trial and without prior notice, the majority also denied the parties an opportunity to raise issues on the admissibility of the evidence,” said the Prosecutor. “This led to the admission of evidence without applying the standard and procedures prescribed by the [Rome] Statute and the Rules.” 

According to Mr. Ocampo, the second error committed by trial judges was that by admitting all prior witness statements before the start of the trial, they appeared to circumvent the primacy of oral evidence in violation of Article 69(2) of the statute. 

In her dissenting opinion, Justice Ozaki said that “the concept of prima facie admissibility simply does not exist in the Rome Statute or in the Rules of Procedure and Evidence.” 

The defense also argued that the legal framework of the court did not allow for the prima facie admission into evidence of materials, and the majority’s regime of prima facie admission could not be reconciled with the principle of the primacy of orality imposed by the court’s legal framework. While the prosecution concurred with the defense on these two grounds for appeal, Mr. Ocampo rejected the third ground advanced by Mr. Bemba’s lawyers, namely that the chamber’s failure to make particularized admissibility rulings before the start of the trial caused prejudice to the accused’s right to a fair trial. 

The Prosecutor argued in a February 18, 2011  filing that the accused’s right to be informed of the charges against him was fully protected by the filing of the document containing the charges and the confirmation decision, which was based on the charges and evidence admitted at the confirmation hearing. 

He added, “Nothing in the Statute or Rules requires, as a fundamental component of notice, that the Trial Chamber also make pre-trial item-by-item admissibility rulings on all anticipated evidence. Indeed, if that were so, every instance when late-discovered evidence was admitted would violate the right to notice of the charges themselves.”

In his appeal, Mr. Kilolo-Musamba had stated that a procedure whereby an accused was only given notice of the evidence against him at the close of the proceedings could not be reconciled with his right to be informed promptly and in detail of the cause and content of the charges against him. 

He added that this was particularly so in international criminal proceedings (as opposed to domestic cases), where the scope and gravity of the charges, the sheer volume of evidence, and the difficulties of conducting investigations gave heightened importance to the right to be informed promptly and in full of the case against an accused.

In the majority opinion, trial judges considered that “the prima facie admission of evidence, without the need to rule on each piece of evidence as it is presented, will save significant time during the proceedings thereby expediting matters.” 

However, Judge Ozaki disagreed. She said the chamber would “only be postponing, not eliminating the need to make a ruling on admissibility, to the end of the case. The time allegedly saved during the proceedings will therefore be ‘lost’ again at the end of the case.” 

The defense supported Judge Ozaki’s reasoning and noted that it might be the case that the prosecution would not ultimately seek the admission of all the documents contained on its List of Evidence. 

“It may eventually be the case that some documents could be discarded as irrelevant or unnecessary to the proceedings as the evidence unfolds and the prosecution case is refined,” argued the defense. “As such, the majority could potentially be increasing its workload by forcing itself to make a ruling on each of the documents it admitted in a blanket manner prior to the commencement of the proceedings.” 

According to Mr. Kilolo-Musamba, perhaps the most significant point was that the defense team, in the exercise of its duties, would now be required to lead evidence to rebut the factual allegations contained in thousands of pages of “evidence” admitted pursuant to the contested ruling, regardless of whether these allegations would ultimately form part of the prosecution case. 

“This will lead to unnecessarily protracted proceedings, and an opportunity for the clear delineation and streamlining of the prosecution case is being missed,” argued Mr. Bemba’s lawyer. “It increases the burden on the defense, as well as wasting the time and resources of the court itself.”

Judge Akua Kuenyehia will preside over the appeal.