Ruto and Sang case: ICC Appeals Chamber reverses Trial Chamber V(A)’s decision on admission of prior recorded testimony

Situation: Republic of Kenya
Case: The Prosecutor v. William Samoei Ruto and Joshua Arap Sang

Today, 12 February 2016, the Appeals Chamber of the International Criminal Court (ICC) decided unanimously to reverse the decision of ICC Trial Chamber V(A) of 19 August 2015, which granted the Prosecutor's request for admission of prior recorded testimony into evidence pursuant to amended rule 68 of the Rules of Procedure and Evidence (RPE).

The Appeals Chamber in this appeal was composed of Judge Piotr Hofmański (Poland), Judge Silvia Fernández de Gurmendi (Argentina), Judge Christine Van den Wyngaert (Belgium), Judge Howard Morrison (United Kingdom) and Judge Péter Kovács (Hungary). Judge Hofmański, who presided over this appeal, read a summary of the judgment in open court.

The Appeals Chamber considered that there was nothing in the drafting history of amended rule 68 of the RPE that revealed an error in the conclusion of the Trial Chamber that the amended rule may apply to this case, subject to a consideration of article 51 (4) of the Rome Statute providing that amendments to the RPE shall not be applied retroactively to the detriment of the accused.

It noted that rule 68 of the RPE was amended by the Assembly of States Parties on 27 November 2013. The Appeals Chamber found that the application of this rule was retroactive as the trial had started on 10 September 2013, before the amendment to the rule, and detrimental in the sense that the disadvantage, loss, damage or harm to the accused caused by its application negatively affected the overall position of Mr Sang and Mr Ruto in these proceedings. For these reasons, the Appeals Chamber decided to reverse the decision to the extent that prior recorded testimony had been admitted under amended rule 68 for the truth of its contents.

The trial of William Samoei Ruto and Joshua Arap Sang opened on 10 September 2013 before Trial Chamber V(A). Mr Ruto and Mr Sang are accused of crimes against humanity (murder, deportation or forcible transfer of population and persecution) allegedly committed in the context of the 2007-2008 post-election violence in Kenya.

Judgment on the appeals of Mr William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V(A) of 19 August 2015 entitled "Decision on Prosecution Request for Admission of Prior Recorded Testimony"

For more information on this case, click here.

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