International Criminal Court (ICC) judges have declined a prosecution request to admit into evidence a medical report that details the nature of injuries sustained by a witness who claims he was shot by Bosco Ntaganda’s troops. However, judges could re-consider admitting the report if the prosecution re-applied for its admission on the basis of the applicable court rules.

The report details a medical examination conducted earlier this year by independent expert Dr. Pierre Perich. The examination aimed to establish whether the alleged injuries are consistent with the testimony of the witness about the location of the injury, its cause, and approximate date when it occurred.

According to the defense, whether or not the witness was shot by Ntaganda’s Union of Congolese Patriots (UPC) soldiers is an important aspect of the prosecution’s case and an issue that strikes at the core of Witness P790’s credibility. While asking judges to order the medical examination of the witness, the defense argued that no evidence expected to be presented by the prosecution was likely to corroborate Witness P790’s testimony in relation to the injury he claims to have suffered.

In an application to judges to admit the medical report, the prosecution stated that Dr. Perich concluded that the witness bore scars of injuries that are consistent with his account of events. The prosecution submitted that the expert’s conclusions were relevant to issues at trial, that his report bore sufficient indications of reliability and that its probative value outweighed any prejudicial effect its admission would have to the accused.

But defense lawyers opposed admission of the report unless the expert was called to testify before judges. The defense acknowledged the relevance of the report and recognized Dr. Perich’s qualifications, but took issue with the reliability of the report in light of the procedure he followed.

The defense argued that if they were not given an opportunity to cross-examine the doctor, the prejudicial effect of admitting the report would far outweigh its probative value. Defense lawyers wanted to cross-examine Dr. Perich, amongst other things on his methodology, since, they argued, contrary to the scope of the examination ordered, it appeared the expert’s conclusions were based on the account of facts reported directly by the witness during his medical examination. Moreover, the defense submitted that the report was incomplete as several questions that strike at the core of the credibility of the witness remained unanswered, such as the timing of the injuries suffered and their cause.

Judges noted that the admissibility of documents, including expert reports, shall be determined on the basis of relevance, probative value and any prejudice that admission may cause to the fairness of the trial. In their May 9 ruling, judges stated that pursuant to Rule 68 of the Court’s Rules of Procedure, the principle of the primacy of orality before the court may be derogated from and previously recorded audio or video testimony of a witness, or the transcript or other documented evidence of such testimony may be considered for admission if the requirements of one or more of the sub-rules are met.

In this regard, the judges noted that experts’ reports have been admitted into evidence in the Ntaganda case in accordance with the procedure set out in Rule 68(3). Accordingly, judges ruled that should the prosecution wish to pursue the report’s admission, it should do so in accordance with Rule 68 which governs admission of prior recorded testimony. It is not clear whether the prosecution has indicated if it will re-apply for the report’s admission.

Ntaganda, the former deputy chief of staff of the UPC, is on trial at the court based in The Hague over 18 counts of war crimes and crimes against humanity, including murder, rape, sexual slavery, pillaging, and use of child soldiers among others. The alleged crimes, which Ntaganda denies, were committed in Congo’s Ituri district during 2002 and 2003.