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Kenya Law / Blog / Case Summary: ICC rejects request for excusal of the accused form attendance at, or for attendance via video link at the status conference scheduled for October 8th,2014

ICC rejects request for excusal of the accused form attendance at, or for attendance via video link at the status conference scheduled for October 8th,2014

ICC rejects request for excusal of the accused form attendance at, or for attendance via video link at the status conference scheduled for October 8th,2014

International Criminal Court.

Situation in the Republic of Kenya.

The Prosecutor v. Uhuru Muigai Kenyatta.

Judges: Judge Kuniko Ozaki, Presiding Judge, Judge Robert Fremr, Judge Geoffrey Henderson

September 30, 2014

Background.

The Chamber issued an order on the 19th September, 2014 vacating the trial commencement date of 7th October 2014 and scheduling status conferences for 7th and 8th October 2014.Owing to the critical juncture of the proceedings and the matters to be considered, the Chamber specified that the accused was required to be present at the status conference on 8th October 2014.

On 25 September 2014, the Defence filed a request for the accused to be excused from attendance at the Status Conference, pursuant to Rule 134 quater of the Rules, or, in the alternative, for the Status Conference to be rescheduled to a later date, and for the accused to be permitted to attend via video-link at that later date.

According to the Defence, the accused, in his capacities as President of Kenya and chairman of the Heads of State of the East African Community, was due to attend a summit in Kampala, Uganda, on 8 October 2014 addressing ‘economic development and regional security issues’ and that the meeting was arranged prior to the Chamber convening the Status Conference.

This meeting according to the Defence constituted ‘extraordinary public duties at the highest national level’ within the meaning and intent of Rule 134 quater of the Rules and therefore requested that the accused be excused from attending the Status Conference. Further, that the nature of the accused’s duties on that day, and the fact that he would be in Kampala, meant it would ‘not be appropriate’ to request an alternative form of presence under Rule 134 bis of the Rules in the form of video-link. The Defence stated that the accused explicitly waived his right of attendance’ in respect of the Status Conference and would be represented by his legal team, which had ‘full conduct and authority over his case.

The Prosecution on the other hand argued that the Defence’s reliance on Rule 134 bis and quater of the Rules was ‘misplaced’, as those provisions only applied once the trial had begun.

Rome Statute of the International Criminal Court

article 63(1)

The accused shall be present during the trial.

Regulations of the Court

Regulation 30-Status conferences

A Chamber may hold status conferences by way of hearings, including by way of audio- or video-link technology or by way of written submissions. The Chamber may require use of standard forms at a status conference as appropriate. Such standard forms shall be approved in accordance with regulation 23, sub-regulation 2.

Rules of Procedure and Evidence

Rule 132(2)

In order to facilitate the fair and expeditious conduct of the proceedings, the Trial Chamber may confer with the parties by holding status conferences as necessary.

Rule 134-Motions relating to the trial proceedings

  1. Prior to the commencement of the trial, the Trial Chamber on its own motion, or at the request of the Prosecutor or the defence, may rule on any issue concerning the conduct of the proceedings. Any request from the Prosecutor or the defence shall be in writing and, unless the request is for an ex parte procedure, served on the other party. For all requests other than those submitted for an ex parte procedure, the other party shall have the opportunity to file a response.
  2. At the commencement of the trial, the Trial Chamber shall ask the Prosecutor and the defence whether they have any objections or observations concerning the conduct of the proceedings which have arisen since the confirmation hearings. Such objections or observations may not be raised or made again on a subsequent occasion in the trial proceedings, without leave of the Trial Chamber in this proceeding.
  3. After the commencement of the trial, the Trial Chamber, on its own motion, or at the request of the Prosecutor or the defence, may rule on issues that arise during the course of the trial.

Held:

  1. Pursuant to the applicable summons conditions the accused was under an obligation to attend ‘all required hearings’ at the Court. The accused’s obligation to attend the Status Conference arose from the terms of the summons, which remained in continuing effect.
  2. The Chamber had discretion to require or excuse the accused’s attendance at status conferences prior to the commencement of trial. Formerly, the Chamber, in exercise of that discretion, had either indicated that the presence of the accused was not required or, having had regard to the nature of the hearing in question, had required the attendance of the accused either in person or by video-link.
  3. In the instant case, it was already indicated that, having regard to the matters to be considered, the Status Conference constituted a ‘critical juncture’ in the proceedings. The matters to be discussed at the Status Conference, arising from the Notice and the responses, directly impacted the interests of the accused, of victims and of witnesses. Therefore, the requirements of justice necessitated the physical presence of the accused at the Court.
  4. The Status Conference was convened for a date upon which the opening statements of the trial would have been expected to take place. Thus, there was no merit in the Defence’s submission regarding the accused’s engagements having been planned prior to the convening of the Status Conference. The alternative request for an adjournment of the Status Conference was also not persuasive.

Dissenting Opinion (Judge Kuniko Ozaki)

  1. Regarding the applicability of Rules 134 of the Rules of Procedure and Evidence, the rules were exceptions to article 63(1) of the Statute, which provided for the obligation of the accused to be ‘present during the trial’. That relation was apparent both from the language of the rules themselves and the background to their adoption, in the immediate wake of the judgment of the Appeals Chamber on the appropriate interpretation of article 63(1) of the Statute. The interpretation of the Appeals Chamber supported a plain reading which applied the article 63(1) obligation of presence to the phase of proceedings after the commencement of the actual trial on the merits. The Appeals Chamber’s emphasis on the evidentiary aspects of the proceedings, including the participation of victims and witnesses, had underlain the obligation of presence. Therefore, Rules 134 bis and quater of the Rules were not applicable in the instant circumstances.
  2. Certain of the factors identified in the Rules would constitute valid considerations for the exercise of the Chamber’s discretion in requiring the presence of the accused at the Status Conference. In particular, the necessity of having due regard to the subject matter of the specific hearings in question. However, the role of the accused during a status conference was different from that during the trial. The matters to be discussed, although of fundamental importance, pertained to the procedural direction of the proceedings, rather than to evidentiary issues for which the physical presence of the accused would be of particular benefit. Therefore, there were factors weighing in favour of permitting the accused’s attendance at the Status Conference to be effected by way of video-link as an alternative to physical presence. Moreover, Regulation 30 of the Regulations of the Court made specific provision for the holding of status conferences, by way of ‘audio- or video-link technology’. That was a procedure that had been previously utilised by the Chamber, and if requested in sufficient time to enable necessary arrangements to be made, could have been an appropriate alternative in that instance. Therefore, the attendance of the accused at the Status Conference would take place either in person or by way of video-link.

Conclusion.

The Chamber by majority rejected the Request and ordered the accused to be present, in person, at the status conference on 8 October 2014.

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