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Cou rPéna l eI n t e r n a t i o n a l e

I n t e r n a t i o n a lC r i m i n a l

C o u r t

^ .

Original: English No.: ICC-01/09-02/11

Date: 24 Sep tem ber 2013

TRIAL CHAM BER V(B)

Before: Judge Kuniko Ozak i , Presiding Judge

Judge Robert Fremr

Judge Chile Eboe-Osuji

SITUATIO N IN THE REPUBLIC OF KENYA

IN THE CASE OF

THE PROSECUTO R v. UHU RU MU IGA I KENYATTA

Public

Decision on the Defence's oral request for an adjournment

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Decision to be notified, in accordance with R egulation 31 of the Regu lations of the Court, to:

Th e Off ice of the Prosec utor Co uns el for U hu ru M uig ai Ken yat ta

Ms Fatou Benso uda Mr Steven Kay

Mr James Stewart Ms Gi l lian Higgins

Ms Adesola Adeboyejo

Legal Representa t ives of Vic t ims

Mr Fergal Gaynor

Lega l Represen ta t ives of App l i can t s

U n r e p r e se n t e d V i c t i m s Unrepresen ted Appl i can t s fo r

Pa r t i c ipa t ion /Repara t ion

The Off ice of Publ ic Counsel for

Vic t ims

Ms Carol ine Wal ter

The Off ice of Publ ic Counsel for the

Defence

S ta t e s Represen ta t ives Amicus Curiae

REGISTRY

Regis t ra r

M r H e r m a n v o n H e b e l

Deputy Regi s t ra r

Vic t ims and Wi tnesses Uni t De ten t ion Sec t ion

Vic t ims Pa r t i c ipa t ion and Rep ara t ions O the rs

Sect ionMs Fiona McKay

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Trial Chamber V(B) ( 'Chamber')^ of the International Criminal Court ( 'Court ') , in the case

of The Prosecutor v Uhuru Muigai Kenyatta, hav in g re ga rd to Articles 64 an d 67 of the Ro me

Statute (the 'Statute ') , issues the following Decision on the Defence 's oral request for an

ad journment .

I . P RO CE DU R A L H I S T O RY A N D S U BM I S S I O N S

1. On 30 Au gu st 2013, the Ch amb er i ssued a schedul ing orde r and agenda for a s ta tus

conference to be held on 6 September 2013.^ The par t ies and par t ic ipants were

instructed to notify the Chamber, by 3 September 2013, of any other issues they may

wish to raise at the status conference.^

2. O n 3 Septe mb er 2013, the defence team for Mr Ken yatta (the 'Defence ') se nt an

email^^ listing, inter alia, the following issu e as one th e Defence 'w ish e[d ] to rais e' at

the statu s conference as part of age nd a i tem D (Other matters):^

[...]

B. Adjo urnm ent of Trial Date as a Result of the Following M atters

2. Mobile Telephone Evidence:

a. Further mobile telephone data to be collected by Defence and OTP joint

expert from telephone companies in relation to sigruficant OTP witnesses.

b. Further analysis of current and yet to be collected data by Defence and OTP

joint expert.

c. Provision of reports from the Defence and OTP joint expert analysing

evidence obtained from extraction of mobile telephone data.

d. Relevance of reports to be considered by parties.

* Where 'Chamber' is used in this decision it refers to both Trial Chamber V in its composition as until 21 May 2013and to Trial Chamber V(B) as composed by the Presidency's Decision constituting Trial Chamber V(a) and TrialChamber V(b) and referring to them the cases of The Prosecutor v. William Samoei Ruto and Joshua Arap Sang andThe Prosecutor v. Uhuru Muigai Kenyatta, 21 May 2013, ICC-01/09-01/11-745.^ Scheduling Order and Agenda for Status Conference, ICC-01 /09-02/11 -799.

s ICC-01/09-02/11-799, para. 3."* E-mail sent by the Defence to the Chamber on 3 September 2013 at 16:26.^ E-mail sent by the Chamber to the Defence o n 3 September 2013 at 18:11.

^ E-mail sent by the Defence to the Cham ber, Prosecution and Legal Representative on 3 September 20 13 at 20:20. TheDefence's email was initially sent to the Chamber only on 3 September 2013 at 16:26. It was re-sent to the Prosecution

and Legal Representative upon the direction of the Chamber, issued by e mail on 3 September 2013 at 18:11.

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e. Ident i f icat ion of fur ther mobile te lephone numbers and mobile te lephones

use d by s ignif icant OTP witnesses a t mater ia l t imes.

f. Further collection of mobile telephone data arising as a result of the initial

extraction.[...]

6. Further t ime required to complete investigations into significant

Prosecution witnesses.^

O n 6 S e p t e m b e r 2 0 1 3 , t h e s t a t u s c on f e r e n c e t oo k p l a c e . D u r i n g t h i s h e a r i n g , t h e

D e f e n c e s u b m i t t e d t h a t ' a n i m p o r t a n t a n d f u n d a m e n t a l d e v e l o p m e n t ' i n r e l a t io n t o

' k e y e v i d e n c e ' h a d t a k e n p l a c e d u r i n g t h e s i x w e e k s p r e c e d i n g t h e s t a t u s

c on f e r e n c e . ^ I t d e s c r i b e d t h e d e v e l op m e n t a s ' t h e j o i n t s e e k i n g o f t e l e p h on e d a t a i n

r e l a t i on t o w i t n e s s e s [ . . . ] w h o h a v e m a d e a l l e g a t i on s i n r e l a t i on t o t h i s c a s e

a s s e r t i n g t h e y w e r e a t s i g n i f i c a n t e v e n t s w i t h c e r t a i n s p e c i f i e d i n d i v i d u a l s ' . ^ I t

s u b m i t t e d t h a t t h e i n v e s t i g a t i o n i n t o t e l e p h o n e d a t a i s o n g o i n g . ^̂ T h e De f e n c e

a v e r r e d t h a t t h i s i n v e s t i g a t i o n w i l l p r o d u c e e v i d e n c e 'o f s u c h f u n d a m e n t a l

i m p o r t a n c e ' t h a t i t n e e d s t o b e p r o p e r l y c on s i d e r e d b y t h e pa rt ie s. ^^ T h e r e f o r e , i t

a r g u e d , t h e t r i a l s h ou l d n o t c om m e n c e ' j u s t [ . . . ] b e c a u s e a t i m e t a b l e h a s b e e n s e t ' ^ ^

a n d t h a t m a i n t a i n i n g t h e c u r r e n t d a t e f o r t h e c o m m e n c e m e n t o f t h e t r i a l w o u l d

p r e v e n t t h e ' p r o p e r d e v e l o p m e n t o f t h i s e v i d e n c e ' a n d , a s s u c h , w o u l d b e c o n t r a r y

to the interests of just ice .^^

I n r e s p o n s e t o a q u e s t i o n f r o m t h e P r e s i d i n g J u d g e a s t o w h e t h e r t h e D e f e n c e w a s

s e e k i n g t h e c om m e n c e m e n t o f t r i a l t o b e v a c a t e d u n t i l a s p e c i f i c d a t e , t h e De f e n c e

^ E-mail sent by the Defence to the Chamber and the Prosecution on 3 September 2013 at 20:20. In addition, theDefence requested that three other issues would be discussed in closed session.^ Transcript of hearing, 6 September 2013, ICC-01/09-02/11-T-26-ENG ETWT, page 26, lines 6 - 7 and 24.^ ICC-Ol/09-02/11-T-26-ENG ETWT, page 2, lines 7- 1 1 .^̂ ICC-01/09-02/11-T-26-ENG ET WT, page 27, line 11.** ICC-Ol/09-02/11-T-26-ENG ETWT, page 27, line 18-22.^̂ ICC-01/09-02/11-T-26-ENG ETWT, page 27, line 21.^̂ ICC-01/09-02/11-T-26-ENG ET WT, page 28, lines 8-10.

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submitted that i ts view on the proper start date remained the same as i t had

prev ious ly su bm itted, nam ely Janu ary 2014.^^

5. The Prosecut ion respo nded ora lly , oppo sing the Defence's request . It subm it ted tha t

the C ha m ber 's decision of 20 June 2013 (the 'Ad jour nm ent Decision') ,^^ in which the

Chamber vacated the t r ia l commencement date of 9 July 2013 and granted the

Defence extra preparat ion t ime by set t ing the date for commencement of t rial at 12

N ov em ber 2013, took into account the Defence 's subm issions m ad e at the time o n

the issue of mobile telephone evidence. The Prosecution pointed specifically to

paragraph 34 of the Adjournment Decision, in which the Chamber considered tha t

the Defence 's invest igations into such evidence did not just ify an extension of the

preparat ion t ime beyond three months.^^

6. The Prosec ution sub m itted that the Defence 's requ est for adjou rnm ent is an at tem pt

to re int roduce the Defence 's previous appl ica t ion to postpone the commencement

of trial unti l January 2014. According to the Prosecution there is no basis for

request ing such reconsidera t ion, as no new submissions had been presented to the

Cha mbe r co mp ared to those previously made.^^

7. The Prosecut ion acknow ledged that a large am oun t of da ta had been ext rac ted as a

result of the telecommunications invest igations, but submitted that this

circum stance is not unc om m on for invest igations in a case such as the prese nt one.^^

I t averred tha t the more than two m onth s tha t remain before the comm encem ent of

*MCC -01/09-02/ll-T-26-ENG ET WT, page 27, lines 1 3 - 2 0 . See also Defence Observations on Estimated Time

Requ ired to Prepare for Trial with Confidential Annex A, Public Annex B , Confidential ex parte Annexes C and C.l

and Confidential Annexes C.2 to G, ICC-01/09-02/11-735-Conf A public redacted version was filed on 14 May 2013,

para. 32.

^̂ Decision on commencement date of trial, ICC-01/09-02/11-763-Conf

*̂ ICC-01/09-02/11-T-26-ENG ET W T, page 30, lines 10 - 22 .

•̂ ICC-01/09-02/11-T-26-ENG ET W T, page 30, lines 21 - 22 and page 31 , lines 5 - 9 .

*̂ ICC-01/09-02/11-T-26-ENG ET W T, page 30, line 25 - page 31 , line 2.

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the trial leave 'more than adequate t ime for al l of the data that has been collected to

be an alyse d and for i t to be used du rin g the co urse of the trial '.^^

8. The Legal Rep resentat ive of Vict ims op po sed the request.^o He sub mitte d that the

vict ims do not want any further delays for the commencement of t rial and that they

suspect that the request is merely an at tempt by the Defence to prevent the start of

the trial.2i

I L A N A L Y S I S A N D CO N CL U S I O N S

9. The Ch am ber recalls that on 26 April 2013, i t issued i ts 'Decision on d efence

applicat ion pu rs ua nt to Article 64(4) an d related requests' ,^^ in which i t d eterm ined ,

inter al ia, that the Defence would be provided with further t ime, beyond the init ial

trial com me ncem ent da te of 9 July 2013, to con duct i ts invest igation s an d pre pa re

for trial . In that decision, the Chamber invited the Defence to submit observations

as to the est imated t ime i t needed to adequately prepare for t rial . The Defence fi led

these observat ions on 13 May 2013, request ing the Ch amb er to pos tpon e the

com m ence me nt of t rial unti l Janu ary 2014.^3 The Ch am ber note s that the Defence, at

that t ime, submitted that al legations by key Prosecution witnesses in respect of their

a l leged presence a t cer ta in events could be undermined by mobi le phone evidence

and that i t further contended that the production of this evidence was t ime-

consuming.^^ In the Adjou rnm ent Decision, the Cha m ber co nside red the Defence 's

proposed period of adjournment and held, inter al ia, that

*̂ ICC-01/09-02/11-T-26-ENG ET W T, page 31 , l ines 18-20.^̂ The Legal Representative was represented at the hearing by the Office of Public Counsel for Victims in accordancewith the C hambe r's Decision on V ictims' Participation, 3 October 2012, ICC-01/09-02/11-498.^̂ ICC-01/09-02/11-T-26-ENG ET W T, page 32, lines 1 6 - 2 1 .

^MCC-01/09-02/11-728.^MCC-01/09-02/l 1-735.

2̂ ICC-01/09-02/11-735, paras 24-25.

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having considered the Defence's arguments in support of its request to

adjourn the commencement u ntil January 2014, the Chamber is not persu aded

that the Defence requires such an extensive additional amount of time (nearly

nine months after the original commencement date of 11 April 2013) in order

to carry out investigations and otherwise adequately p repare for trial.

In particular the Chamber does not accept that the Defence's on-going

investigations into mobile telephone evidence and Prosecution intermediaries

justifies an extension of time beyond the three months initially contemplated

by the Chamber. Such investigations are part of the Defence's ordinary

preparations and, apart from the matter of delayed disclosure of the relevant

individuals' identities, have not been frustrated by conduct on the part of the

Prosecution.25

10 . The Chamber thus took the Defence 's submissions on the mobi le phone evidence

into account wh en set t ing the comm ence me nt da te of t rial for 12 N ov em ber 2013.

The Defence has not presented the Chamber wi th addi t ional or new arguments

why this da te should be vacated and why an adjournment unt i l January 2014

should be gran ted . ^̂ Indeed, the Defence appears to be of the view that the

Cha mb er sho uld not base the sought decision to adjourn the com men cemen t date of

trial on legal or substantive submissions but rather on the Defence 's - as of yet -

unsubstant ia ted conclusions about the phone evidence only. 7̂ The Defence

submitted that i t is 'aware of significant conclusions that are going in one direct ion

only [and] tha t comple te ly su ppo rt the Defence content ions ' , and that i t kn ow s tha t

the mobi le pho ne evidence 'a l te rs the wh ole natu re of these proceedings ' , because i t

has 'sp en t considerab le t ime looking at it'.^» The Ch am ber cann ot dete rm ine

^̂ ICC-01/09-02/11-763-Conf, 33-34.^̂ In this regard, the Cham ber no tes that the issues listed as proposed agenda items in the De fence's email of 3September 2013, do not constitute submissions in support of the request for adjournment as they were not elaborated

upon at the hearing.^̂ See, e.g, ICC-01/09-02/11-T-26-ENG ET WT , page 27, lines 5-10; and page 28, lines 2 1 - 2 4 .^̂ ICC-01/09-02/11-T-26-ENG ET WT, page 27, lines 14-16.

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whether the request for an adjournment should be granted on the basis of such

proposi t ions a lone .

11 . The only substant ive submission by the Defence , made in reply to the Legal

Representat ive of Vict ims' response, was that 'a part icular software and technology

has had to be developed to enable the mater ia l and data to be produced and

considered' .29 Ho we ver, this circum stance alone canno t justify an adjou rnm ent.

12 . Furthermore , the Chamber does not accept the Defence suggest ion tha t the current

commencement date of t r ia l should be vacated because the Prosecut ion needs to

conside r wh eth er the case sho uld co mm ence at al l .^ This is me rely the Defence 's

view on the strength of the Prosecution's case and does not provide a basis for an

ad journment .

13 . Ultimately i t is the view of the Chamber that the Defence 's request for an

adjo urn me nt unti l Janua ry 2014 is in fact no m ore tha n a requ est for recon siderat ion

of the Adjournment Decision. This is abundantly clear from lead counsel 's

submissions tha t when the Chamber se t the t r ia l commencement date for 12

No vem ber 2013, i t 'd id n ot accept m y guidanc e on the mat ter but chose ano ther

date'^i and that ' I ha d the date that I 'd subm itted to the Co urt al tered by the Co urt -

for whatever reason the Court al tered i t - but my original applicat ion was based

up on m y being able to foresee how lo ng i t w ou ld tak e to deal with th is data '.^^

14. As considered by the Chamber in the Adjournment Decision, the Defence

invest iga t ions into the pho ne evidence are par t of ordin ary defence prep ara t ion s for

trial and do not necessitate an adjournment unti l January 2014. Since the Defence

has not shown good cause why the Chamber 's previous decision should be a l te red,

the Chamber therefore rejects the Defence 's request .

2̂ ICC-01/09-02/11-T-26-ENG ET W T, page 33, lines 17 - 20.

^° See ICC-Ol/09-02/11-T-26-ENG ET W T, page 28, lines 3 - 5 .

^̂ ICC-Ol/09-02/11-T-26-ENG ET W T, page 27, line 23 - page 28, line 2.^- ICC-01/09-02/11-T-26-ENG E T WT, page 29, lines 2 - 4 .

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F O R T H E F O R E G O I N G RE A S O N S , T H E CH A M BE R H E RE BY

REJECTS the Defence 's request for an adjournment.

Done in both English and French, the English version being authori tat ive.

17 / c ;

Ju d g e K u n i k o O z a k i , P r e s i d i n g ^

Dated 24 Septemb er 2013

At The Hag ue , The Ne the r l ands

Ju d g e Cm l e E b o e - O su ji

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