The Appeals Chamber rules on preventive relocation of witnesses

ICC-CPI-20081204-PR380

Situation: Democratic Republic of the Congo
Case: The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui  

In its Judgment of 26 November, the Appeals Chamber found that “the Prosecutor cannot unilaterally preventively relocate witness”. In cases of disagreement between the assessment of the Victims and Witnesses Unit of the Registry ("VWU") and the Prosecutor, the ultimate arbiter of whether the serious measure of relocation should be undertaken is the Chamber.

These were the findings of the majority of the Judges of the Appeals Chamber when dismissing the appeal of the Prosecutor against the decision of Pre-Trial Chamber I issued on 18 April 2008 and made public in a redacted version on 25 April 2008. Two Judges, Judge Pikis and Judge Ntanda Nsereko had issued dissenting opinions on the matter. 

According to the Appeals Chamber, VWU, located within the Registry is the most appropriate body to take decisions on the relocation of witnesses. The VWU is not a party to the proceedings and therefore will be able to assess the need for relocation of a witness neutrally. 

Notwithstanding the above, the Judges noted that the Prosecutor still has a significant role to play in relation to matters of relocation. “(…) one measure that the Prosecutor can take pursuant to article 68 (1) of the Statute is that of making an application for relocation to the Registrar on behalf of a particular witness. This would include providing the Registrar with all necessary information to assess that application, based at least in part upon the knowledge that the Prosecutor has of the situation on the ground”, the Chamber stated.

The Judges emphasised the vital importance of cooperation between the Prosecutor and VWU “to ensure as a matter of the highest priority, that witnesses are appropriately protected”. 

The Victims and Witnesses Unit (VWU), within the Registry, maintains a Protection Programme for relocation of witnesses. The relocation of a witness involves his or her transfer to a new location and the re-settlement of the witness in the new location. The relocation of a witness is likely to have serious consequences for his or her life. 

The Prosecutor and counsel may file applications for the inclusion of witnesses in the Protection Programme. As provided by the Regulations of the Registry, the VWU shall make an assessment as to whether the persons concerned should be included in the Protection Programme; the decision as to their inclusion is being taken by the Registrar.

Prior to the confirmation of charges hearing in respect of Mr. Katanga and Mr. Ngudjolo Chui, the Prosecutor had requested that several of the witnesses upon whom he intended to rely at that hearing be included in the Protection Programme and that they be relocated as part of their protection. Following an assessment pursuant to regulations 96 (3) and (4) of the Regulations of the Registry, the Registrar rejected the applications of the Prosecutor in respect of three witnesses. Following this decision of the Registrar, the Prosecutor proceeded to "preventively relocate" the three witnesses himself.

In the Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, the impugned decision in this case, the Pre Trial Chamber ruled inter alia that the Prosecutor should immediately put an end to the practice of preventive relocation. The Pre-Trial Chamber found that the Prosecutor did not have the authority to relocate witnesses himself and that he must rely of the VWU for that purpose.  

The Pre-Trial Chamber granted leave to appeal in this respect. 

Dissenting opinion of Judge Georghios M. Pikis and Judge Daniel David Ntanda Nsereko

In the opinion of the minority of the Judges, the Rome Statute expressly confers power upon the Prosecutor to take on his own accord measures for the safety, dignity and privacy of witness and witness including preventive relocation during both, the investigation and prosecution of crimes.

26.11.2008 - Judgment on the appeal of the Prosecutor against the "Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules" of Pre-Trial Chamber I
ICC-01/04-01/07-776

---

For further information please contact Ms Sonia Robla, Head of Public Information and Documentation Section at +31 (0)70 515-8089 or +31 (0) 646448726 or at sonia.robla@icc-cpi.int

Source: Appeals Chamber