Joshua Arap Sang and William Ruto

7/28/2019 Joshua Arap Sang and William Ruto

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CourPnale / ^ ^ . ^ \Internationale v f ^ l ^ VInternational ^ ^ ^ ^ ^CriminalCourt

Original: Eng lish No.: ICC-01/09-01/11Date: 3 Jun e 2013

TRIAL CHAMBER V(A)

Before: Judg e, Chile Eboe-Osuji, Pres idingJudge Olga Herrera CarbucciaJudge Robert Fremr

SITUATION IN THE REPUBLIC OF KENYAIN THE CASE OF

THE PROSECUTOR v. WILLIAM SAM OEIRU TO and JOSHUA A RAP SANG

PublicDecision on prosecution requests to add witnesses and evidence and defence

requests to reschedule the trial start date

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Decision to be notified, in accordance with Regulation 31 of the Regulations of theCourt, to:The Office of the ProsecutorMs Fatou BensoudaMr James StewartMs Cynthia Tai

Counsel for William Samoei RutoMr Karim A.A. KhanMr David H ooperMr Kioko Kilukumi MusauMs Shyamala AlagendraCounsel for Joshua Arap SangMr Joseph Kipchumba Kigen-KatwaMr Silas Chekera

Legal Representatives of VictimsMr Wilfred NderituLegal Representatives of A pplicants

Unrepresented Victims Unrepresented Ap plicants forParticipation/Reparation

The Office of Public Counsel forVictimsMs Paolina Massidda

The Office of Public Counsel for theDefence

States Representatives Amicus Curiae

REGISTRYRegistrarMr Herman von Hebel Deputy Registrar

Victims and W itnesses UnitMr Patrick CraigDetention Section

Victims Participation and Reparations Othe rsSection

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Trial Chamber V(A)* ("Chamber")^ of the International Criminal Court ("Court"), in thecase of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang, having regard to Articles64 and 69 of the Rome Statute ("Statute") and Rule 132 of the Rules of Procedure andEvidence, issues this Decision on prosecution requests to add witnesses and evidence anddefence requests to reschedule the trial start date.

I. Procedural History

1. On 9 July 2012, the Cham ber issued a "D ecision on the schedule leading u p totrial", whereby it set 10 April 2013 as the date for the commencement of trial.^

2. On 8 March 2013, the Chamber vacated the 10 April 2013 start date in order toallow the Defence add itional time to prep are for trial. The new date for the startof trial was set as 28 May 2013.^

3. On 12 April 2013, the Office of the Prosecutor ("Prosecution") filed a request toadd five witnesses to its witness list and add their evidence to its list of evidence("Prosecution Request").^

4. On 16 April 2013, the defence for Mr Ruto ("Ruto Defence") requested, inter alia,an ex parte. Defence only, statu s conference to a dd ress defence inv estigationissues.^ The defence for Mr Sang ("Sang Defence") joined the R uto Defence's

* Judge Herrera Carbuccia, who was appointed as Judge to Trial Chamber V(A) on 21 May 2013, and therefore was notpresent in the status conferences subject of this decision, and so as not to affect the expeditiousness of proceedings,hereby attests that she has familiarised herself with the record of the proceedings and the written and oral submissionsmade by the parties and participants.^ Where "Chamber" is used in this decision it refers both the Trial Chamber V in its composition as until 21 May 2013and to Trial Chamber V(A) as composed by the Presidency's decision of 21 May 2013 (see Decision constituting TrialChamber V(a) and Trial Chamber V(b) and referring to them the cases of The Prosecutor v. William Samoei Ruto andJoshua Arap Sang and The Prosecutor v. Uhuru Muigai Kenyatta, ICC-01/09-01/11-745; "Presidency's Decision").MCC-01/09-01/11-440.^ Decision concerning the start date of trial, ICC-01/09-01/11-642." Prosecution's Request Pursuant to Regulation 35(2) of the Regulations of the Court, ICC-01/09-01/11-680-Conf-Exp.A confidential redacted version was filed on 15 April 2013, ICC-01/09-01/11-680-Conf-Red.^ Defence Request for Status Conference, ICC-01/09-01/11-683-Conf, para. 2, 7-9. A public redacted version was filedon 25 April 2013, ICC-01/09.01/11-683-Red.No. ICC-01/09-01/11 3/35 3 Jun e 2013

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request for a status conference on 18 April 2013,^ indicating that it wished todiscuss, inter alia, the feasibility of the 28 May 2013 date for the start of trial ("SangDefence Request").

5. On 22 April 2013 and on 24 April 2013, respectively, the Ruto Defence and theSang Defence filed separately their responses to the Prosecution Request ("RutoDefence Response"^ and "Sang Defence Response"^), in which both defence teamsopposed the addition of the new witnesses to the Prosecution's witness list.

6. Also on 22 Ap ril 2013, the Ruto Defence filed the "Second Defence R equest toVacate the Trial Commencement Date" ("Ruto Defence Request"), in which itrequested that the trial date of 28 May 2013 be vacated in order to allow theDefence adequate time to prepare its case.^ On 24 April 2013, an addendum to theRuto Defence Request was filed.^^

7. On 1 May 2013, the Prosecution responded to the Ruto Defence Request, ^ inwhich it submits that the request should be denied. That same day, the Co mm onLegal Representative for Victims ("Legal Representative") also responded to theRu to Defence Request. ^

8. On 3 May 2013, the "Pro secution's Second Request Purs uant to Regulation 35(2)of the Regulations" was filed.^^

^ Sang Defence Request for Status Conference pursuant to Rule 132(2), ICC-01/09-01/11-687-Conf.^ Defence Response to the Prosecution's Request Pursuant to Regulation 35(2) of the Regulations of the Court, ICC-01/09-01/11-693-Conf.^ Sang Defence Response to Prosecution's Request Pursuant to Regulation 35(2) of the Regulations of the Court, ICC-01/09-01/11-702-Conf.^ ICC-01/09-01/11-692-Conf. A public redacted version was filed on 25 April 2013, ICC-01/09-01/11-692-Red. Addendum to Second Defence Request to Vacate the Trial Commencem ent Date, ICC-01/09-01/11-701-Conf.^ Prosecution's Response to the Second Defence R equest to Vacate the Trial Com mencement D ate, ICC-01/09-01/11-715-Conf.^ Response of the Common Legal Representative for Victims to the Second Defence Request to Vacate the TrialCommencement Date, ICC-01/09-01/11-714.^ ICC-01/09-01/11-720-Conf-Exp. A confidential redacted version was filed on 8 May 2013, ICC-01/09-01/11-720-Conf-Red.No. ICC-01/09-01/11 4/35 3 June 2013

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14. On 14 and 15 May 2013, the Chamber held an inter partes status conference inorde r to add ress issues related to the aforementioned requests, am ong others.^^

15. On 21 May 2013, the Ruto Defence filed its response to the Second ProsecutionRequest. 20 The Sang Defence also attempted to file its response within theprescribed time limit, but was not able to do so because, pursuant to thePresidency's Decision, the Chamber's composition (and name) had changedshortly before the filing deadline. As a result, the Sang Defence filed an updatedversion of its response after the 16.00 deadline.^^ The Chamber takes into accountthe special circumstances and will consider the Sang Defence's response to theSecond Prosecution Request and the T hird Prosecution Request.

16. The outcome of the Chamber's decision on the Prosecution's requests to rely onfive additional witnesses at trial, and add other additional evidence, willnecessarily affect the time the Defence needs to adequately prepare for trial, andas such, the start date of trial. Therefore, the three Prosecution applications, aswell as the Sang Defence Request and the Ruto Defence Request, will be dealtwith herein.

17. The Chamber will first set out, and analyse, the parties' submissions on the threeProsecution requests. After deciding on these requests, the submissions by theparties and the Legal Representative on the trial date will be set out, followed bythe Chamber's analysis and decision on this matter.

^ Transcript, ICC-01/01-01/11-T-22-CONF-ENG ET; Transcript, ICC-01/01-01/1 l-T-23-CONF-EXP-ENG ET. Defence Response to the "Prosecution's Second Request pursuant to Regulation 35(2) of the Regulations of the Court(ICC-01/09-01/11-720-Conf-Exp)", ICC-01/09-01/11-744-Conf.2* Sang Defence Response to the Prosecution's Regulation 35(2) Applications (ICC-01/09-01/11-720-Conf-Red andICC-01/09-01/1 l-724.Co nf), ICC-01/09-01/11-746-Conf.No. ICC-01/09-01/11 6/35 3 June 2013

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IL Prosecution RequestA. Submissions by the parties

i) Prosecution18. The Prosecution submits that it has recently discovered three new witnesses,

namely P-564, P-571 and P-572, whose evidence is said to be both "critical"^ for tothe Pro secution's case and offering "new and com pelling evidence"^^ which "willultimately aid the Chamber in its determination of the truth and serve theinterests of justice" . ^ The Prosecution contends that the Chamber should allowthe addition of this evidence as it fulfills the test set out by Trial Chamber 11 inKatanga and Ngudplo,"^ according to which the new evidence must be "either morecompelling than evidence already disclosed to the Defence, or [bring][...] to lightpreviously unk no w n facts w hich have a significant bearing u po n the case".^^

19. The Prosecution alleges that the lateness in the discovery of these three person s aspotential witnesses is not to be attributed to the Prosecution, but rather resultedfrom the "exceptional and precarious circumstances of the case". ^ Thesecircumstances are said to include "an atmosphere of intimidation in Kenya",which has had "a chilling effect on current prosecution witnesses as well asanyon e inten ding on co operating w ith the C our t" . ^

20. The Prosecution explains that as a result of security concerns two of its "mostcritical witnesses", as well as another witness, have been imable to provide

" ICC-01/09-01/1 l-680-Conf-Red, paras 1 and 11.2 Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 44, lines 19-23." ICC-01/09-01/11-680-Conf-Red, paras 1 and 11.2 ICC-01/09-01/11-680-Conf-Red, paras 24-25.2 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the disclosure of evidentiary materialrelating to the Prosecutor's site visit to Bogoro on 28 ,29 and 31 March 2009 (ICC-01/04-01/07-1305, 1345,1360, 1401,1412 and 1456), 9 October 2009, ICC-01/04-01/07-1515-Co rr, para. 37." ICC-01/09-01/11-680-Conf-Exp, para. 13, and further set out in paras 16-18.2 ICC-01/09-01/11-680-Conf-Red, para. 13.No. ICC-01/09-01/11 7/35 3 Jun e 2013

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assurances that they will testify at trial. ^ For this reason, the Prosecution hascontinued investigating "in the hope of finding new witnesses to replace" theaforementioned witnesses, in the event that this becomes necessary.^^

21. The Prosecution submits that its request to add the new witnesses (P-564, P-571and P-572) could either be authorised under Regulation 35(2) of the Regulationsor, alternatively, under Article 64(6)(d) of the Statute pursuant to the Chamber'sauthority to order the production of evidence.^^

22. In addition, the Prosecution requests permission to add "two other importantwitnesses", namely P-111 and P-471, to its witness list.^^ The Prosecution submitsthat this addition "wl serve to establish the truth", and that it "will not imdulyprejudice the Defence", because these witnesses were initially already on theProsecu tion's w itness list ^ and the m aterial related to these witnesses wa spreviously disclosed to the Defence in January 2013 and November 2012,respectively, albeit in redacted form.^In addition, P-lll's and P-471's evidencewas relied on in the Pre-Trial Brief. ^ The Prosecution submits that the relevantevidence is thus "already known to the Defence".^

23. The Prosecution submits that given the personal circumstances of P-111 at thetime that the deadline for disclosure of his identity was approaching, it had noalternative bu t to remove this witness from its list.^^ The Prosecution subm its th atcircumstances have since changed and that P-111 is now in a position to testify

^ ICC-01/09-01/11-680-Conf-Red, paras 14-15. ICC-01/09-01/11-680-Conf-Red, para. 15.^ ICC-01/09-01/1 l-680-Conf-Red, paras 7-22.2 ICC-01/09-01/11-680-Conf-Red, para. 1.^ P-111 and P-471 were withdrawn from the Prosecution's witness list on 30 January 2013 and 21 January 2013,respectively. See ICC-01/09-01/11-680-Conf-Red, para. 5.^ ICC-01/09-01/11-680-Conf-Red, paras 30 and 33 ; see also ICC-01/09-01/11-T-22-CONF-ENG, page 45 , lines 11-14.^ ICC-01/09-01/11-680-Conf-Red, para. 29.^ ICC-01/09-01/11-680-Conf-Red, para. 29.^ ICC-01/09-01/11-680-Conf-Red, para. 30.No. ICC-01/09-01/11 8/35 3 Jun e 2013

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before the Court, although additional submissions are made ex parte as to o ngoingsecurity concerns for this witness.^^

24. Similarly, the Prosecution submits that due to P-471's personal situation in thebeg inning of 2013, this person did w ant to testify.^^ Ho wever, the P rosecu tioninforms the Chamber that P-471's personal circumstances have since changed andP-471 is no w w illing to testify.^

25. W ith respect to the addition of all five witnesses to its witness list, the P rosecutioncontends that the Defence would not be unduly prejudiced in its preparation fortrial as "[t]his evidence is intrinsically connected to the core allegations of theprosecution case, known to the Defence since the early stage of the proceedings".^^Moreover, the Prosecution submits that the majority of its evidence has alreadybeen disclosed to the Defence "many months ago".'^^ Further, it submits that theadditional evidence relates "in substantial part [to] matters that are within thedirect knowledge of the Accused, including their own actions" ." In addition, inthe view of the Prosecution any potential negative impact on the Defencepreparations can be minimised by scheduling the testimony of the five requestedwitnesses at the end of the Prosecution's case."^ii) Ruto Defence

26. The R uto Defence opposes the Prosecution Request."^^ The R uto D efence subm itsthat the Statute and the Court's jurisprudence make clear that the Prosecutionmust provide "proper and reasonable justification" for post-confirmation

^ ICC-01/09-01/11-680-Conf-Red, para. 31.^ ICC-01/09-01/11-680-Conf-Red, para. 33. ICC-01/09-01/11-680-Conf-Red, para. 34.^ ICC-01/09-01/11-680-Conf-Red, para. 37.2 ICC-01/09-01/11-680-Conf-Red, para. 38.^ ICC-01/09-01/11-680-Conf-Red, para. 39.^ ICC -01/09-01/11-680-Conf-Red, para. 40.^ ICC-01/09-01/11-693-Conf, para. 2.No. ICC-01/09-01/11 9/35 3 Jun e 2013

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Defence submits that the Prosecution Request is premature since no witnesseshave been wi thdrawn from the Prosecut ion 's l i s t o f wi tnesses and any need toreplace evidence of witnesses is currently only speculation.^^

30 . Furtherm ore , the Ruto Defence subm its tha t the Prosecut ion 's invest iga tions pr iorto the confirmation of the charges against the accused were "whollyi n a d e q u a t e " . ^ It submits that the majori ty of the witnesses that the Prosecutionseeks to rely on at t rial was interviewed post-confirmation and imtil veryrecently.5^ The Ru to Defence arg ues that if the Prosecu tion "has n ot d on e w ha tthey ought to and should have done" , i t should be open about this , ra ther thanmaking allegations of witness intimidation.^^

31. In addit ion, the Ruto Defence contends that the Prosecution's admission that i tfo imd "new" and "more compel l ing" evidence during the course of i t s post -confirmation invest igations contradicts the Prosecution's just ificat ion that i tsrequest results from security concerns.^Hi) Sang Defence

32 . The Sang Defence opposes the addit ion of the five witnesses and asks theChamber to reject the Prosecution Request . I t adopts the submissions made in theRuto Defence Response . ^ In addit ion, i t submits that the Prosecution Request"appears to be a brazen at tempt to circumvent the finali ty of orders made by theTrial Chamber", because the Prosecution was ordered to disclose al l incriminatoryevidence and i ts witness l ist to the Defence by 9 January 2013.^^ xhe Sang Defence

^ ICC-01/09-01/11-693-Conf, para. 8.^ ICC-01/09-01/11-693-Conf, para. 9.^ ICC-01/09-01/11-693-Conf, paras 9-10.^ ICC-01/09-01/11-693-Conf, paras 9-10.^ ICC-01/09-01/11-693-Conf, para. 11.^ ICC-01/09-01/11-702-Conf, para. 2.^ ICC-01/09-01/11-702-Conf, para. 3.N o. ICC-01/09-01/11 11/35 3 Ju n e 2013

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argu es tha t the Prosecut ion is no w im prope rly a t tem pt ing to "bela tedly bolster i tscase" wi th new wi tnesses and new mater ia l .^

33. During the 14 May 2013 status conference, the Sang Defence focused on therequest to add P-564, P-571 and P-572. It argued that the Prosecution seeks to addthese persons as wi tnesses in order to replace Witness 15 and another wi tnesswhose identi ty is currently unknown to the Defence. In the event that Witness 15and this other witness are able to testify, in the view of the Sang Defence, therewould be no need for these three addit ion witnesses.^ As to the securi ty concernscited by the Prosecu tion, the Sang Defence h old s that these do n ot ap ply in case ofW itness 15 becau se the fact that this witne ss has chang ed his min d abo uttest ifying "has nothing to do with securi ty".^ In any event , the Sang Defence asksthe Chamber to take the veracity of the securi ty concerns al leged by theprosecution into account when deciding on the Prosecution Request .^^

34 . The Sang Defence requests that if the Chamber grants the Prosecution Request ,the Defence be given "reasonable t ime within which to respond to the contents ofthe a ddit io nal evidence".^^

B. Analysis by the Chamber35. As to the adding of P-571 and P-572, the Chamber notes that recently no witnesses

have been w i thd raw n from the Prosecut ion 's wi tness l i s t. ^ Al tho ugh theProsecution submitted that these witnesses are ""cri t ical" for the Prosecution's

^ ICC-01/09-01/11-702-Conf, para. 3.^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 27, lines 16-21.^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 27, lines 1-6.^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 28, lines 9-18.^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 29, lines 15-20.^ Prose cutio n's provision of materials pursuant to Decision ICC-01/09-01/11-440, 9 January 201 3, ICC-0 1/09-01 /11-540-AnxA-Conf-Red; and Prosecution's provision of updated Pre-Trial Brief, 25 February 2013, ICC-01/09-01/11-625,para. 2.N o. ICC-01/09-01/11 12/35 3 Ju n e 2013

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case" , ^ i t ha s not pr ov ide d any inform ation on the basis of which the Ch am bercould conclude tha t this might inde ed be the case . The Cha mb er considers tha t theexplanation of P-571 and P-572 (and P-564)'s evidence, as set out in theProse cution Re quest an d du rin g the 7 M ay status conference, does not - at thisstage - sup por t the Prosecut ion 's c la im.

36 . Without prejudice to any decision at a later stage on addit ional witnesses, theCha mb er con siders i t prem ature to add, a t this s tage , ext ra wi tnesses tha t may ormay not be called upon to replace evidence that - based on the current state of theProsecution case and i ts l ist of witnesses - wil l be given by other witnesses.Adding P-571 and P-572 as wi tnesses now, when ul t imate ly the i r test imony maynot need to be replaced, would imduly burden the Defence in i t s prepara t ion fortrial.

37 . As to P-564, the Chamber notes that the Prosecution during the 7 May 2013 statusconference stated that the adding of P-564 was not requested for the purposes ofreplac ing another wi tness, bu t a t the same t ime descr ibed the evidence tha t w ouldbe given by P-564 as corrobora t ing and i t ment ioned that this would be "anaddit ional witness" test ifying about certain acts and conduct of the accused.^^ Inaddi t ion, the Chamber notes tha t the Prosecut ion appears unsure whether recentevents that allegedly took place wl affect its bid to add P-564 to its witness list.^^Under these c i rcumstances, the Chamber considers tha t permit t ing theProsecution to add P-564 to the witness l ist is not opportune.

38. The Ch am ber therefore den ies the Prosecution leave to add P-564, P-571 and P-572to its witn ess l ist. In the even t that one or mo re of the witnesse s on the witnes s l isthave to be wi thdrawn, the Prosecut ion is f ree to make a renewed appl ica t ion for

69 See para. 18 above. Transcript, ICC-01/09-01/1 l-T-20-CONF-EXP-ENG ET, page 6, lines 15-21.^ Transcript, ICC-01/09-01/1 l-T-20-CONF-EXP-ENG ET, page 7, line 17 to page 8, line 16.N o. ICC-01/09-01/11 13/35 3 Ju ne 2013

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the addi t ion of new wi tnesses. The Chamber wi l l then, taking into considera t ionthe circumstances at that moment, decide on such an applicat ion. For now, theProsecution's request is considered premature and therefore rejected.

39 . With respect to the request to add P-111 and P-471 to the Prosecution's witnesslist , the Chamber considers that the aforementioned prejudice to the Defence doesnot arise. Both P-111 and P-471 were on the Prosecution's ini t ial witness l ist andpursuant to the Chamber 's orders the i r ( redacted) s ta tements were disc losed tothe Defence before the 9 January 2013 deadline for disclosure; on 2 January 2013and 30 November 2012, respectively.^ These witnesses formed part of the originalPro sec ution case and are, as such , m en tio ne d in the Pre-T rial Brief ^

40 . P-111 and P-471 were withdrawn from the Prosecution's witness l ist because theProsecution at the t ime, due to securi ty concerns related to personal circumstancesof a tem pora ry natu re , could not comply wi th the Ch am ber 's ord er to disclose theidenti ty of these persons. When withdrawing P-111 from its witness l ist on 30January 2013, the Prosecution already ann ou nce d th at in case of a delay in the trialor a change in the personal circumstances of P-111, i t would request " la teinclusio n" of this pe rso n o n i ts witne ss list.^^ N ow that these circu mstan ces hav echanged, the Cham ber i s pers uad ed that there has been a change in c i rcumstancesthat warrants the grant ing of the Prosecut ion 's request to add these wi tnessesback o n to i ts witne ss l ist . The Ch am ber c onsiders th at no prejudice to the accusedarises so long as the Defence will be given more t ime to prepare for t rial than wasoriginally contemplated when init ial ly set t ing the date for the commencement oftrial.

^' ICC-01/09-01/11-527 and ICC-01/09-01/11-494-Red.^ See the Pre-Trial Brief filed on 9 January 2013 (ICC-01/09-01/11-540-Conf-Exp-AnxD) at paras 180, 181 , 196, 211 ,242 and 256 for P-111 and at paras 48, 51 , 59, 65, 76, 98, 105, 114, 124, 134, 18 2,2 20 ,24 0,2 41 ,25 5,2 56 ,26 0,3 93and 394 for P-471.^ ICC-01/09-01/11-577-Conf-Exp, para. 8.N o. ICC-01/09-01/11 14/35 3 Ju n e 2013

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41. The Chamber considers i t important , however, that disclosure related to P-111and P-471 will take place as soon as possible. No further delays in disclosure, savefor extra-ordinary circumstances, wil l be accepted by the Chamber. If theProsecution is not in a posit ion to disclose the identi ty of these witnesses andstatem ents in com pliance w ith the Red action Protocol by 10 June 2013, i t wil l ha veto wi thdraw these wi tnesses.

III . Second P rosecu t ion Reques t42 . The Chamber now turns to the Second Prosecut ion Request , which per ta ins to a

request for authorizat ion of disclosure of the statements arising out of the re-interviews of four witnesses (Witnesses 189, 287, 336, and 495) as incriminatingmaterial , as well as the disclosure of interact ive maps, and the addit ion of theseitem s to the Pro sec utio n's L ist of Evidenc e ("LoE"). ^

A. Submissions by the partiesi) Prosecution

43. The Prosecution explains that i t has re-interviewed four witnesses in order toclarify "specific issues of a limite d scope".^^ It su bm its tha t the resu lting wi tne ssstatem ents are "ve ry brief an d conc ise",^ an d that they will assist the C ham berand the Defence teams in understanding specific elements of prior disclosedevidence.^^

44 . The Prosecution sets out that during an interview in March 2013 with P-564,whose addit ion to the witness l ist forms part of the Prosecution Request , i trece ived informat ion tha t cont radic ted evidence previously provided by one of

^ ICC-01/09-01/1 l-720-Conf-Red, para. 22.^ ICC-01/09-01/11-720-Conf-Red, para. 2.^ ICC-01/09-01/11-720-Conf-Red, para. 2.^ ICC-01/09-01/11-720-Conf-Red, para. 12.N o. ICC-01/09-01/11 15/35 3 Ju n e 2013

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formed the basis to conduct the re-interview after the 9 Jan uary 2013 disclosuredeadline.^^

47 . The Prosecut ion submits tha t these c i rcumstances demonst ra te good cause andreasons outside the Prosecution's control , which - in the view of the Prosecution -are requ ired for the Cham ber to "retroactively exten d the 9 Jan uary disclosuret ime l imit".^

48. Further, the Prosecution submits that i t was only in March 2013 able to obtaininteractive m ap s of the locations wh ere the al leged at tacks occurred.^^ The m ap sconcern the greater Eldoret region, Kiambaa, Turbo, Kapsabet , and Nandi HiQs.Âccording to the Prosecution, such maps that accurately show these locationsboth before and after the post-elect ion violence will be "extremely useful" to theCh am ber an d to all part ies and participants.^^ It high lights th at i t seeks inclusionof the maps in the case record so that al l part ies and part icipants may be able touse them to present the i r argument and views. The Prosecut ion submits tha t thelate disclosure of the maps thus does not result in any unfair prejudice to theDefence.îi) Ruto Defence

49. The Ruto Defence opposes the Second Prosecution Request .^^ It submits that thereis no just ificat ion for the addit ion of the re-interview statements and theinteractive maps to the LoE.^ It repeats its objections to the Prosecution Request^ând contends that any securi ty concern just ificat ions put forward by the

^ ICC-01/09-01/11-720-Conf-Red, para. 18.^ ICC-01/09-01/11-720-Conf-Red, para. 11.^ ICC-01/09-01/11-720-Conf-Red, para. 20.^ ICC-01/09-01/11-720-Conf-Red, para. 20.^ ICC-01/09-01/11-720-Conf-Red, paras 3 and 12.^ ICC-01/09-01/11-720-Conf-Red, para. 21.^4CC-01/09-01/ll-744-Conf,para. 1.2 ICC-01/09-01/11-744-Conf, para. 3.^ ICC-01/09-01/11-744-Conf, para. 3.N o. ICC-01/09-01/11 17/35 3 Ju n e 2013

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Pro secution, in fact, result from "investigative failings". " Fu rther, it complainsabout the Prosecution's use of redactions and the lack of legal basis provided fort h e m . 9 5

50. The Ruto Defence argues that since the re-interviews of Witnesses 336 and 495were triggered by the interview of P-564, a person who in the view of the RutoDefence should not have been interviewed this long after the confirmationdecision, adding the re-interviews to the LoE should not be permitted.^ Similarly,in suggesting that Witness 287 was re-interviewed in order to strengthen thecredibility of Witness 536, a witness who was first interviewed in late December2012, it contends tha t the re-interview of Witness 287 should thus n ot be ad ded totiie LoE.^

51. As to the re-interview of Witness 189, the Ruto Defence submits that the re-interview could have been conducted before the 9 January 2013 deadline and thatthe Defence should not be burdened because of the Prosecution's failure to do

52. With respect to the request to add interactive maps to the LoE, the Ruto Defencesubmits that it does not believe the Prosecution's submission that it was unable toobtain the said maps at an earlier date.^ Further, it does not consider the maps tobe useful as they appear to be "simply the names of case specific locations incertain areas".^ For these reasons, the Ruto Defence submits that there is no basisto add the maps to the LoE.^^^

^ ICC-01/09-01/11-744-Conf, para. 4.^ ICC-01/09-01/11-744-Conf, paras 4, 6 and 8.^ ICC-01/09-01/11-744-Conf, para. 5.^ ICC-01/09-01/11-744-Conf, para. 9.^ ICC-01/09-01/11-744-Conf, para. 7.^ ICC-01/09-01/11-744-Conf, para. 10.^ ICC-01/09-01/11-744-Conf, para. 11.^^ ICC-01/09-01/11-744-Conf, para. 12.No. ICC-01/09-01/11 18/35 3 Jun e 2013

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Hi) Sang Defence53. The Sang Defence opposes the addition of the re-interview statements of

Witnesses 189, 287, 336, and 495 and the interactive maps to the LoE "at this latestage", because the Prosecution has not persuasively explained why it did notrespect the 9 January 2013 disclosure deadline in relation to these materials.^^ Itspecifically addresses the request to add the re-interview statements of Witnesses189 and 287. It submits that the Prosecution misrepresents the dates that theseW itnesses were first interviewed.^^ By referring to the witness statem ents alreadyon the LoE, the Sang Defence stresses the Prosecution wa s on notice of the need toconduct a re-interview well before the moment alleged in the Second ProsecutionRequest. The Sang Defence argues that the Prosecution therefore should havebeen able to conduct the re-interviews prior to the 9 January 2013 deadline a nd asa result, the statements of the interviews conducted after this disclosure deadlineshould not be ad ded to the LoE.^^

54. As to the interactive m aps, the Sang Defence contends that the Prosecution shou ldhave informed the Chamber prior to the 9 January 2013 disclosure deadline that itwas experiencing difficulties in obtaining such maps and apply for an extension.The Sang Defence submits that as a result of the failure to do so at that stage, therequ est to add the m aps to the LoE should be rejected.^^^

B. Analysis by the Chamber55. At the outset, the C hamb er recognises that the Sang Defence correctly highlighted

that the Prosecution provided inaccurate information to the Chamber about the

^ ^ ICC-01/09-01/11-746-Conf, para. 3.^ ^ ICC-01/09-01/11-746-Conf, paras 5-11 .^^ ICC-01/09-01/11-746-Conf, paras 8 and 11. ICC-01/09-01/11-746-Conf, para. 12.N o. ICC-01/09-01/11 19/35 3 Ju ne 2013

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dates of i ts first interviews with two of the witnesses to which the SecondProse cution R eques t relates.^^^ The Cha mb er reg rets that the Prosec ution pro vid edthe Chamber with incorrect submissions on this point and urges i t to be dil igent inthe future.

56. The Ruto Defence has challenged the re-interview statement of Witnesses 336 and495 on the basis of the source of the Prosecution's information that t riggered there-interviews.^^ Ho we ver, th e source of the inform ation triggerin g the need tocon duc t re-interview s is no t the cri terion on the basis of whic h the just ification foradmit t ing the resul t ing re- interview sta tements i s assessed. What mat ters i swhether the Prosecution received information that required clarificat ion.

57. Contrary to the Defence 's submissions,^^^ the Chamber considers that the addit ionof re-interview statements does not part icularly burden the Defence. Rather, there-interview statements put the Defence on notice of issues that may arise duringthe test imony of the witnesses concerned. The Chamber considers that disclosureof the statements to the Defence sufficiently in advance of the start of trial for it tohave adequate t ime to prepare, is in the interests of just ice and that a variat ion ofthe disclosure d ead line init ially set for 9 Janu ary 2013 is therefore app rop riate .

58 . Therefore, the Chamber permits the addit ion of the re-interview statements to theLoE. As no request for redactions to the statements is before the Chamber, thisauthorisa t ion is given in the understanding that the s ta tements wi l l be disc losedforthwith and be in compliance with the Redactions Protocol.^^

59 . As to the interac t ive maps, the Chamber considers tha t de ta i led maps may bebeneficial for i ts understanding of the evidence. The Defence quest ions the ut i l i ty

See para. 53 above.06^ ^ See para. 50 above.^ See para. 51 above.* Decision on the protocol establishing a redaction regime, 27 September 2013, ICC-01/09-01/11-458-AnxA-Corr.N o. ICC-01/09-01/11 20/35 3 Ju ne 2013

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of the maps, o but the Chamber considers that the maps m ay assist the Chamber,as well as the parties and participants in the proceedings, in appreciating thegeographical location of relevant places discussed during the presentation ofevidence. However, as with all other evidence, the Defence needs to be in aposition to test it and challenge its credibility. The Ruto Defence objected to theidentity of the entity that produced the maps being withheld without thementio ning of any reaso n by the Prosecution. ^^ Indeed, th e Cham ber considersthat - in the absence of justification for non-disclosure provided by theProsecution - the name of the entity should be disclosed to the Defence. TheChamber notes that the actual maps themselves do not appear to contain anyinformation identifying their origin and/or which entity produced them. For theaforementioned reasons, the Chamber concludes that the maps as such may beadmitted to the LoE. As to the confidential redacted version of the SecondProsecution R equest, if the Prosecution w ishes to retain the redactions to the nam eof the entity that produced the maps, it is required to request such redactions; orelse, it is to file a lesser redacted version of the Second Prosecution Request,witho ut redactions to paragra ph 20, by 10 June 2013.

60. The Chamber grants the Second Prosecution Request. Disclosure of the newstatements of Witnesses 336, 495, 189, and 287, and of the interactive maps is totake place forthw ith.

IV. Third Prosecution Request61. The Third Prosecution Request pertains to the request to add a Prosecution

investigator to the Prosecution's witness list.

^ * See paras 52 above.^^ ICC-01/09-01/11-744-Conf, para. 12.No. ICC-01/09-01/11 21/35 3 Jun e 2013

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A. Submissions by the partiesi) Prosecution

62 . The Prosecution sets out that on 16 April 2013 the Ruto Defence indicated to theProsecution by email that i t considered i t "in the interest of just ice for theProse cution to call the lead invest igator as part of i ts case in chief". ^ Q ^ 26 A p r i lan d 3 May 2013, respectively, the Prosec ution notified the Ruto D efence an d theSang Defence by email that i t would seek leave from the Chamber to add aProsecution invest igator to i ts witness l ist . The Sang Defence respondedfav ou rab ly to this email.^^^

63 . The Prosecut ion seeks authorisa t ion from the Chamber to add Mr Fre imann, theformer Prosecution team leader, as an addit ional witness to i ts witness l ist . I tsubmits that the result ing variat ion of the t ime l imit for disclosure to the Defenceof the witnesses that the Prosecution intends to call at trial is justified since theDefence does not oppose call ing Mr Freimann at t rial , and because Mr Freimann'stest imony would assis t the Chamber in understanding the genera l conduct of theinvest igations in the Kenya I case, and as such, "aid the Chamber in fulfi l l ing i tsmandate".^^"^ Therefore, it submits, including this person in the witness list will notcause undue prejudice to the Defence nor affect the fairness of the proceedings.^^^

64. The Prosecut ion submits tha t because Mr Fre imann's test imony is intended toassis t the Cha mb er a t the s tart of the case in un ders tand ing h ow the Prosecut ion 'sinvest igations were conducted and how statements were taken from witnesses,^^^the scope of the said test imony should not involve irrelevant matters that are

^ - ICC-01/-09-01/11-724-Conf, para. 5.^ ^ ICC-01/-09-01/11-724-Conf, paras 6 and 8.^ ^ ICC-01/-09-01/11-724-Conf, paras 1 and 9-10.*^ ICC-01/-09-01/11-724-Conf, para. 9.^ ^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 42, lines 1-5.N o. ICC-01/09-01/11 22/35 3 Ju ne 2013

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imm aterial to the case. ^^ It stresses that "fishing expeditio ns" sho uld be avoided^^^and that limiting the scope of the questioning is "in the interests of judicialeconomy". ^^ It therefore requests the Chamber to limit the questions to MrFreimann to "those bearing on objective facts" and that questions "aimed atchallenging the investigative methods" of the Prosecution be disallowed. ^^ Inaddition, it holds that the questions should not address the situation of particularwitnesses.^21 n subm its tha t questions by all part ies an d pa rticipants sho uld belimited to how the investigation was conducted, which difficulties wereencountered by investigators, how witness statements were taken, and howexonera ting ev idence w as collected an d reviewed. ^^ii) Ruto Defence

65. The Ruto Defence, which initially asked the Prosecution to add the Prosecution'slead investigator to the witness list, ^^ supports the request for calling MrFreimann as a witness. However, it opposed the requested restrictions onquestioning.^24

66. The Ruto Defence notes that all questioning of witnesses must always beprobative and relevant to the concerning issue, which is laid down in the Statute,the Rules and the Code of Professional Conduct for counsel, ^s ^he Ruto Defencedoes not see any justification why Mr Freimann would be afforded a "specialstatus" that would "effectively [...] shield" this Prosecution staff member from

*^ ICC-01/-09-01/11-724-Conf, para. 10, referring to The Prosecu tor v. Ba har Idriss Abu Garda , Decision on witnessto be called by the Defence at the confirmation hearing, 19 October 2009, ICC-02/05-02/09-186.^ ^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 41, lines 18-20.^ ^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 42, lines 18-20." ICC-01/-09-01/11-724-Conf, para. 10.^^ ICC-01/-09-01/11-724-Conf, para. 12, referring to The Prose cuto r v. Germain K atanga a nd Mathieu Ngudjolo Chui,Dcision sur la requte de la Dfense de Mathieu Ngudjolo en vue de reporter la date d'ouverture des dbats au fond(rgle 132-1 du Rglement de procdure et de preuve), 5 November 2009, ICC-01/04-01/07-1603.^22ICC-01/-09-01/11-724-Conf, para. 11 .' ICC-01/09-01/ll-734-Conf, para. 2.*' ICC-01/09-01/11-734-Conf, para. 3.^^ ICC-01/09-01/11-734-Conf, para. 4.No. ICC-01/09-01/11 23/35 3 June 2013

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"necessary questioning"^^^ and to curtail the Defence's right to cross-examine.^27 ndoes not und erstan d w hy M r Fre imann's posi t ion as a wi tness shou ld be di fferentfrom other witnesses.^^^

67 . The Ruto Defence argues that the decisions in Abu Gharda and Katanga andNgudjolo, on which the Prosecution rel ies, ^^ do not support the Prosecut ion 'srequest.^^o

68. The Ruto Defence submits that i t is for the Chamber to control the proceedingsand that the Chamber can order the Defence to stop pursuing a certain l ine ofquestioning,^^^ bu t that the Ch am ber cann ot ma ke su ch a dete rm inatio n at thisstage of the proceedings.^^^

69. With respect to the order in which the Prosecution witnesses be called, the RutoDefence requests the Chamber tha t the Prosecut ion be ordered to ca l l MrFreimann as i ts first witness in order to prevent that he "tai lor[s] his evidenceaccording to what t ranspires in the cross-examination of other prosecutionwitnesses".^^^ In add it ion, i t requ ests the C ham ber to orde r the Pros ecution to takea s ta tement f rom Mr Fre imann on the topics to which the Prosecut ion proposeshis test imony be l imited, so as to assist the Defence in preparing properly inadvan ce to Mr Fre imann's test imony.^^

^ ^ ICC-01/09-01/11-734-Conf, paras 2 and 12.^ ^ ICC-01/09-01/11-734-Conf, para. 16.^' ICC-01/09-01/11-734-Conf, paras 5 and 15.^ ^ See footnotes 117 and 121 above.^ ICC-01/09-01/11-734-Conf, paras 6-11 .^^ ICC-01/09-01/11-734-Conf, para. 13.^ 2 ICC-01/09-01/11-734-Conf, para. 16.^^ ICC-01/09-01/11-734-Conf, paras 19-20.^" ICC-01/09-01/11-734-Conf, para. 21.N o. ICC-01/09-01/11 24/35 3 Ju ne 2013

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Hi) Sang Defence70. The Sang Defence welcom es the calling of M r F reimann as a witness.^^^ It does

object to the conditions that the Prosecution seeks to have put in place for MrFreimann's testimony. The Sang Defence submits that placing restrictions on thequestioning w ou ld affect "the integ rity of these proceedings"^^^ and frustrate theChamber's ability to seek the truth. ^^ Limiting the Defence's ability to askquestions would defeat the purposes of Article 54 of the Statute, and willprejudice the Defence by affecting its options to put forward arguments on theinvestigations.^^^

71. The Sang Defence stresses that the Chamber will be able to determine whatquestion may be asked and which may not be asked during the actualtestimony.^^^

B. Analysis by the Chamber72. The Chamber commends the parties for having agreed, through inter partes

discussion, on seeking permission to add a Prosecution investigator to theProsecu tion's w itness list. Ho wever, the fact that the pa rties agree does no t affectthe need for the Chamber to carefully assess the request to add a new witness tothe w itness list. At this stage, no specific issues as to the Pro secution's m etho d ofinvestigating have arisen, as the evidentiary stage of the trial has not yetcommenced and no witnesses have been heard and no related witness statementshav e bee n adm itted into evidence. "^

^ ^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 31 , lines 14-16; ICC-01/09-01/11-746-Conf, para. 13.^ ^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 31 , line 21 to page 32, line 3.^ ^ ICC-01/09-01/11-746-Conf, para. 13.^ ^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 30, lines 13-17.* ^ Transcript, ICC-01/09-01/11-T-22-CONF-EN G ET , page 32, lines 11-12; ICC-01/09-01/11-746-Conf, para. 13." See arguments made at Transcript, ICC-01/09-01/1 l-T-22-CONF-ENG ET, page 41 , line 25 to page 42 , line 3.

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73. The Prosec ution ha s ci ted judicial econ om y an d efficiency as argu m en ts to call MrFreimann at the beginning of trial , but the Chamber considers i t more efficient tocall a witness on the Prosecution's invest igations when actual issues concerningthese invest igations would have arisen. At this stage of the proceedings, theChamber therefore rejects the Third Prosecution Request .

V . Defence reques t s74 . The Chamber will now consider the Defence 's requests. Init ial ly, the Defence

requested to vacate the trial date in order for i t to be given extra t ime to preparefor trial. The C ha m be r h as a lrea dy vac ated the 28 Ma y 2013 trial date^"^^ an d willtherefore consider the Defence requests as requests for extra time. It will first setout the submissions by the part ies and the Legal Representat ive, followed by theChamber 's analysis .

A. Submissions by the partiesi) Ruto Defence

75 . The Ruto Defence raises a number of issues that i t suggests just ify delaying thestart of t rial unti l November 2013. ^^^xh^ gj-st of these is the continued nondisclosure of the identi ty of Witness P-534. The Ruto Defence submits that i t isunable to conduct invest igations regarding P-534, a witness the Prosecution hasde sc rib ed as "k ey " to its case. "^^ In this co nn ectio n, th e Defen ce po in ts to the"significant redactions remain[ing]" in the Prosecution's Pre-Trial Brief. ^^ The

^^4CC-01/09-01/l 1-722.^ ' ICC-01/09-01/11-692-Red.^ ^ ICC-01/09-01/11-692-Red, paras 7-11 .^^ ICC-01/09-01/11-692-Red, para. 13.N o . ICC-01/09-01/11 26/35 3 Ju ne 2013

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Defence also submits that is has not been given sufficient t ime to invest igate theeviden ce of W itness P-524, wh ose ide nti ty wa s only disclosed on 17 Ap ril 2013.^^^

76 . The next issue raised by the Defence is the Prosecution's request to add fivewitnesses, submit ted six weeks before the scheduled t r ia l commencement date .The Defence contends that if the Chamber authorises the addit ion of even one ofthese witnesses, al l of whose identi t ies are unknown to the Defence, more t imewill be required in order to conduct effect ive invest igations into the witnessesprior to trial .^^ The Defence subm its that the Up da ted Pre-Trial Brief wou ld nee dto be revised again to incorporate the evidence of any new witness. "^ It alsosubmits tha t even were the Chamber to deny the request to add one or more ofthe five witnesses. Rule 77 of the Rules and potentially Article 67(2) of the Statuterequire that the identi t ies and statements of the witnesses are disclosed to theDefence sufficiently in advance of t rial in order to al low appropriateinvestigations.^"^

77 . The Ruto Defence also raises the related matter of the recent disclosure by theProsecution of audio recorded interviews relat ing to four witnesses, as well as theDefence request to be provided with full , non-redacted screening notes for al lPro secu tion trial witnesses.^^^ The Defence contes ts the contin ue d no n-d isclo sureof Rule 67(2) material related to Witness P-41, and i t also reques ts the iden ti t ies often non-trial witnes ses for wh om the Prosecu tion pr ep are d screening notes.^^ Italso submits that i t wil l need to review and take any necessary invest igative stepsas a result of the inform ation containe d in the 28 screening n otes of trial witnesse swh ich w ere disclosed o n 16 April 2013 (more tha n three m on ths after th e final

^ ^ ICC-01/09-01/11-692-Red, para. 12.^^ ICC-01/09-01/11-692-Conf, paras 15-17.^ ^ ICC-01/09-01/11-692-Conf, para. 18.^ ^ ICC-01/09-01/11-692-Conf, para. 19.^ ^ ICC-01/09-01/11-666-Conf-Exp.^ ICC-01/09-01/11-692-Conf, paras 23-27.N o . ICC-01/09-01/11 27/35 3 Ju ne 2013

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80. The Ruto Defence also submits that three months after full disclosure isinsufficient to prepare for trial, given the volume of material that has beendisclosed and the timing of disclosure that has taken place to date.^^^ The Defenceprovides the Chamber with specific information as regards the number of itemsdisclosed post-Confirmation.^^^ It submits that the credibility and motivations ofthe Prosecution's witnesses is central to the case, and that it is thus essential forthe Defence to be able to investigate, prior to the commencement of trial, theinterconnections betwe en the Prosecution's witnesses.^^ The Ruto Defence mad efurther submissions o n the scope of necessary investigations d urin g the course ofthe ex parte. Defence only, statu s conference h eld o n 14 May 2013. ^^

81. On this basis, the Ruto Defence requests that the Trial Chamber set the new trialstart date as no earlier than November 2013. ^^

82. During the inter partes status conference on 14 May 2013, the Ruto Defencerequested that the Prosecution be required to appoint a disclosure officer to certifythat disclosure had been done.^^ii) Sang Defence

83. During both the ex parte and the inter partes status conferences on 14 May 2013, theSang Defence made submissions concerning the reasons it would need additionaltime to conduct investigations prior to trial, and in particular pointed to latepros ecutio n d isclosure as the ma in factor for this state of affairs.^^

^ ^ ICC-01/09-01/11-692-Red, paras 36-44.^ ^ ICC-01/09-01/11-692-Red, paras 39-43; Addendum to Second Defence Request to Vacate the Trial CommencementDate, 24 April 2013, ICC-01/09-01/11-701-Conf.^^ ICC-01/09-01/11-692-Red, para. 44.^^ Transcript, ICC-01/09-01/1 l-T-21-CONF-EXP-ENG ET.^ 2 ICC-01/09-01/11-692-Red, page 16.^ ^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 14, lines 6-10.^^ See, for example. Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 33, lines 8-18.No. ICC-01/09-01/11 29/35 3 June 2013

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84 . As regards Article 70 allegations, the Sang Defence made submissions on theprejudice arising out of the Prosecution's al legations of witness interference.According to the Sang Defence, the t ime and resources i t must devote toinvest igating these al legations is substantial and detracts from its abil i ty to focuson th e case agains t the accused.^^ The San g Defence a lso sub m its th at ex parte orheavuy redacted Prosecut ion submissions conta ining a l legat ions of wi tnessinterference are inappropriate as the Defence is thus unable to properlyrespond.^^iii) Prosecution

85. During the s ta tus conference , the Prosecut ion acknowledged that there were"oversights" with regard to disclosure in this case, but contended that the Defencehas not just ified i ts request to delay the start of t rial unti l November 2013.^^^ TheProsecution also submits that in view of the disclosure review ordered in Kenyattacase, it is currently conducting a further review of all material in its possession.^^With regard to the Defence 's request for screening notes, the Prosecution submitsthat i t ha s pro vid ed the relevan t information as requested.^^^ The Prosec ution alsosubmitted that the identities of all of its witnesses - save for P-534 and theadditional five witnesses it seeks to add - have been disclosed to the Defence.^^^Finally, as regards the Pre-Trial Brief, the Prosecution submits that there are onlyve ry few red actio ns remaining.^^^

^ ^ Transcript, ICC-01/09-01/11-T-23-CONF-ENG ET, page 36, line 13 to page 37, line 20.^^ Transcript, ICC-01/09-01/11-T-23-CONF-ENG ET, page 37, line 21 to page 38, line 8.^ ^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 38, line 5 to page 39, line 8.^ ^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 39, lines 11-14.^ ^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 39, lines 15-18.^ Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 39, lines 19-21.^^ Transcript, ICC-01/09-01/1 l-T-22-CONF-ENG ET, page 39, lines 22-25.N o . ICC-01/09-01/11 30/35 3 Ju ne 2013

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86. In sum, the Prosecution argues that the trial should begin "as soon as practicable"in light of the outstanding Prosecution request to add five witnesses, although itdeclined to suggest what d ate might be appropriate.^^iv) Legal Representative

87. The Office of Public Counsel for Victims (OPCV), on behalf of the Common LegalRepresentative, made submissions during the 14 May 2013 status conferenceconcerning the start date of trial. As an initial matter, the OPCV informed theChamber that as a result of non-notification of important documents to the LegalRepresentative, the victims are unable to make detailed submissions on thereleva nt issues related to the s tart date of trial. ^ The OPCV recalled in this regardthe C ham ber's rem inder durin g the 13 May 2013 status conferences'' that theparties are to notify the Legal Representative and OPCV of any filings affectingthe personal interests of the victims.^''^

88. As regards the start date of trial, the OPCV submits that a further delay in thecommencement of trial may adversely affect the effective participation of victimsin the proceedings. ^^ The OPCV also submits, however, that it recognizes theimportance of the disclosure process and therefore believes that the Chambermust strike a balance between the rights of the Defence for adequate time andfacilities to prepare for trial, and the obligation to ensure a fair and ex in settingthe ne w trial start date.^^

"2 Transcript, ICC-01/09-01/11-T-22-CONF-ENG ET, page 40, lines 4-25.^ ^ Transcript, ICC-01/09-01/11-T-23-CON F-ENG ET, page 12, line 12 to page 17, line 2.^ ^ Transcript, ICC-01/09-01/1 l-T-22-CONF-ENG ET, page 3, lines 17-22.^ ^ Transcript, ICC-01/09-01/11-T-23-CONF-ENG ET, page 13, lines 14-19.^ ^ Transcript, ICC-01/09-01/11-T-23-CONF-ENG ET, page 14, lines 1-12.^ ^ Transcript, ICC-01/09-01/11-T-23-CONF-ENG ET, page 14, lines 15-25.No. ICC-01/09-01/11 31/35 3 Jun e 2013

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B. Analysis by the Chamber89. As a preliminary matter, the Chamber indicates that the parties' submissions

related to Article 70 will be dealt with as necessary in a separate decision.However, for purposes of the determination of a new date for the commencementof trial, the Chamber considers that no additional delay is necessary on the basisof Article 70 issues. Any possible charges broug ht pu rsua nt to Article 70 wo uld bepart of a separate case, not brought before this Chamber. Consequentiy, theseallegations will not affect the preparation time in the current case; unless theProsecution at trial intends to rely on additional evidence that forms part ofArticle 70 allegations, in wh ich case it must disclose this m aterial, an d apply to theCham ber to a dd it to the LoE.

90. On another preliminary note, the Chamber is deeply concerned by both thesignificant volume of late disclosure in this case and the fact that at this late date,additional evidence still remains to be disclosed to the Defence. The Chamberrecalls its previous decision d elaying the original trial date, in which it found that"the disclosure of a large amount of materials dose to the scheduledcommencement date of trial puts a significant burden on the Defence'spreparation" and noted that "the Defence was in a position to start conducting itsinvestigations relating to a significant part of the disclosed material only recentlyand for some of it the Defence is still unable to investigate".^''^

91. The Chamber has, however, considered all of the submissions of the Defenceteams in support of their request to delay the date for trial commencement untilN ovem ber 2013. The Cham ber is not pers uad ed that an addition al delay of suchan extensive period (more than five months) is necessary in order to permit the

178 ICC-01/09-01/11-642, paras 13 and 15.No. ICC-01/09-01/11 32/35 3 Jun e 2013

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Defence adequate time to carry out investigations and otherwise adequatelyprepa re for trial.

92. Although the Defence has already been given additional time in order to conductinvestigations arising out of material disclosed after January 2013, it is clear thatfurther additional time is still required for the Defence to be able to effectivelyprepare for trial. The Chamber notes in this regard the very recent disclosure ofscreening notes an d th e fact that the identity of Witness 534 is still unkno w n to theDefence. Also of significance to the determination of a new trial date is the factthat in the present decision the Prosecution is authorised to add to its witness listtwo witnesses whose identities are not yet known to the Defence. Given theseconsiderations, the Chamber concludes that it is appropriate to grant the Defenceadditional time to prepar e for trial.

93. As discussed above, the Prosecution must disclose the identities of P-111 and P-471 by 10 Jime 2013. The Chamber considers that three months after the fulldisclosure of the evidence that the Prosecution intends to rely on at trial allowsthe D efence sufficient time to be re ady for trial. ''

94. For these reasons, the Chamber is of the view that adjourning trial until 3September 2013 will allow the Defence sufficient time to conduct the necessaryinvestigations an d to carry out its prepar ation.

^ ^ ICC-01/09-01/11-440, para. 7. Pursuant to the Chamber's decision of 2 May 2013, the disclosure of the identity of P-534 is delayed until 45 days before the witness's testimony, but no later than the commencement of trial (Confidentialredacted version of the "Decision on the Prosecution's renewed request for delayed disclosure of identity of Witness534", ICC-01/09-01/11-718-Conf-Red). The Chamber further notes that the disclosure of identities of non-trialwitnesses mentioned in screening notes is to be completed by 60 days before trial (see Decision on Defence request tobe provided with screening notes and Prosecution's corresponding requests for redactions, ICC-01/09-01/11-743-Conf,ICC-01/09-01/11-743-Conf).No. ICC-01/09-01/11 33/35 3 Jun e 2013

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SETS the da te for the start of trial for 10 September 2013;

REJECTS all other requests.

- ^

Judge Chile Eboe-Osuji, Presiding Ju dge

cJudge Olga Herrera Carbuccia Juag e Rob ert Fremr

Dated 3 June 2013

At The Hague, The N etherlands

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Documents

Joshua Arap Sang and William Ruto