Original: English .: ICC-01/09-01/11 Date: 24 May 2016 ...

ICC-01/09-01/11-2031-Red 24-05-2016 1/17 EC T

Original: English

No.: ICC-01/09-01/11 Date: 24 May 2016

Before:

TRIAL CHAMBER V(A)

Judge Chile Eboe-Osuji, Presiding Judge Judge Olga Herrera Carbuccia Judge Robert Fremr

SITUATION IN THE REPUBLIC OF KENYA

IN THE CASE OF THE PROSECUTOR v. WILLIAM SAMOEI RUTO and JOSHUA ARAP SANG

Public With Confidential Annex A

Public redacted version of Prosecution's response to the Defence requests to appoint an amicus prosecutor

Source:

Office of the Prosecutor

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Document to be notified in accordance with regulation 31 of the Regulations of the Court to:

The Office of the Prosecutor Ms Fatou Bensouda Mr James Stewart Mr Anton Steynberg

Counsel for the Defence For William Samoei Ruto: Mr Karim Khan Mr David Hooper Ms Shyamala Alagendra

For Joshua Arap Sang: Mr Joseph Kipchumba Kigen-Katwa Ms Caroline Buisman

Legal Representatives of the Victims Mr Wilfred Nderitu

Legal Representatives of the Applicants

Unrepresented Victims

Unrepresented Applicants (Participation/Reparation)

The Office of Public Counsel for Victims Ms Paolina Massidda

The Office of Public Counsel for the Defence

States' Representatives

Amicus Curiae

REGISTRY

Registrar Mr Herman von Hebel

Counsel Support Section

Deputy Registrar

Victims and Witnesses Unit Mr Nigel Verrill

Detention Section

Victims Participation and Reparations Others Section

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Introduction

1. The Prosecution opposes the Defence requests to appoint an amicus prosecutor1 for the purposes of investigating potential article 70 offences. The requests should be dismissed in limine on each of the following grounds:

(i) Messrs Ruto and Sang2 are no longer accused persons as the charges against them have been vacated. Accordingly, they have no legal standing to bring such a request;

(ii) For the same reason, Trial Chamber V(A)3 is no longer seized with the case against the Applicants and thus lacks the necessary jurisdiction to entertain the Defence Requests. In any event, requests pertaining to article 70 offences should be directed to the competent Pre-Trial Chamber; and

(iii) The relief sought by the Applicants would require the Chamber to act ultra vires and usurp the discretion to initiate an investigation into offences under article 70, which the statutory framework of this Court confers exclusively upon the Prosecutor.

2. Alternatively, should the Chamber consider that it is properly seized with the matter, the Defence Requests should be dismissed on their merits. The material adduced in support of the Defence Requests simply does not warrant judicial intervention, as explained below. They are also premature, since much of the relevant material alleged to be in the possession of the Ruto Defence has not yet been provided to the Prosecution.

3. The Prosecution also deprecates the Ruto Defence allegations of misconduct against ICC staff members that are unsubstantiated, sensationalist and in some cases gratuitous. These allegations were included in full in the public redacted

1 ICC-01/09-01/11-2028-Conf ("Ruto Defence Request") and ICC-01/09-01/11-2030-Conf ("Sang Defence Response"); (together "the Defence Requests"). 2 "The Applicants". 3 "The Chamber".

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version filed by the Ruto Defence and have been widely4 ? and in some instances incorrectly5 ? published in the media. This conduct has either intentionally or recklessly brought the ICC and its officials into disrepute and is thus in breach of the Code of Professional Conduct for Counsel.6

Confidentiality level

4. Pursuant to regulation 23bis(2), this Response is filed confidentially as it is in response to Defence filings of the same classification. The Prosecution will simultaneously file a public redacted version.

Procedural Background

5. On 5 April 2016, the Chamber issued its Decision on Defence Applications for Judgments of Acquittal ("Decision"). The Chamber, by majority, vacated the charges against both Mr Ruto and Mr Sang, without prejudice to their prosecution afresh in future.7

6. None of the Parties appealed the Decision. No proceedings are thus pending before the Chamber.

7. On 2 May 2016, the Ruto Defence filed the Ruto Defence Request.8

4 `ICC staffers, witnesses may have received bribes, sexual favours ? DP Ruto', ; `William Ruto wants ICC staff charged', ; `Kenyan VP accuses ICC staff of engaging in illicit sex with witnesses', ; `Ruto accuses Bensouda team of seeking sexual favours during ICC case', ; `Kenya: DP Ruto Lawyers Go After ICC Staff, Witnesses (The Nation)', ; `Ruto's new filing keeps ICC agenda alive - Deputy President's defence accuses court officials of sexual misconduct with witnesses', ; `DP Ruto lawyers go after ICC staff, witnesses',

; `Ruto wants Bensouda probed over ICC witness coaching, sexual harassment',

star.co.ke/news/2016/05/03/ruto-wants-bensouda-probed-over-icc-witness-coaching-sexual-

harassment_c1343956; All last accessed on 24 May 2016. 5 Several reports incorrectly attribute the alleged misconduct and evidence tampering to members of the OTP. See fn. 4 above: `Ruto accuses Bensouda team of seeking sexual favours during ICC case'; Ruto wants Bensouda probed over ICC witness coaching, sexual harassment''; All last accessed on 24 May 2016. 6 Article 24(1). 7 ICC-01/09-01/11-2027-Conf. A public redacted version was issued on the same day. 8 ICC-01/09-01/11-2028-Conf. A public redacted version was filed simultaneously.

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8. On 10 May 2016, the Common Legal Representative for Victims filed his response to the Defence Request ("CLR Response").9

9. On 18 May 2016, the Sang Defence filed its response in which it supports and joins the Ruto Defence Request.10

Submissions

a. Messrs Ruto and Sang have no standing to bring this request

10. The Chamber's Decision vacating the charges has effectively terminated the proceedings against the Accused. The time limit for appealing the Decision has lapsed and the Decision is thus final. Although the vacation of the charges was "without prejudice to their prosecution afresh in future"11, unless and until charges are reinstated, no lis exists between the Parties.

11. Thus, the Applicants are no longer "accused" or even "persons charged" before this Court and do not enjoy the rights conferred upon such persons by the Statute and Rules. In fact, they have no greater rights or standing than any other member of the public. This Chamber has previously dismissed in limine a filing by a member of the public for this reason.12

12. The fact that an investigation still exists that may, or may not, result in future charges is irrelevant. In the Mbarushimana case, Pre-Trial Chamber I ruled that, prior to the issuance of a warrant of arrest or summons, "under the statutory framework of the Court, there is no legal basis for a person under the Prosecutor's investigation to submit observations at the current stage of proceedings".13

9 ICC-01/09-01/11-2029-Conf. 10 ICC-01/09-01/11-2030-Conf. 11 Decision, p. 1. 12 [REDACTED]. 13 ICC-01/09-35, para. 10.

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