No.
ICC-01/09-02/11
1/18
05 February 2013
Original: English No.:
ICC-01/09-02/11
Date:
05 February 2013TRIAL CHAMBER V
Before: Judge Kuniko Ozaki, PresidingJudge Christine Van den WyngaertJudge Chile Eboe-OsujiSITUATION IN THE REPUBLIC OF KENYAIN THE CASE OF
THE PROSECUTOR v. FRANCIS KIRIMI MUTHAURA ANDUHURU MUIGAI KENYATTA
PublicDefence Application to the Trial Chamber Pursuant to Article 64(4) of the Rome Statuteto Refer the Preliminary Issue of the Confirmation Decision to the Pre-Trial Chamberfor ReconsiderationSource: Defence for Uhuru Muigai Kenyatta
No.
ICC-01/09-02/11
2/18
05 February 2013 Document to be notified in accordance with regulation 31 of the
Regulations of the Court
to:The Office of the Prosecutor
Fatou Bensouda, Prosecutor Adesola Adeboyejo, Trial Attorney
Counsel for the DefenceCounsel for Francis Kirmi Muthaura
Karim A. A. Khan QC, Essa Faal, KennedyOgetto & Shyamala Alagendra
Counsel for Uhuru Muigai Kenyatta
Steven Kay QC and Gillian Higgins
Legal Representatives of the Victims
Fergal Gaynor
Legal Representatives of the ApplicantsUnrepresented Victims Unrepresented Applicants(Participation/Reparation)The Office of Public Counsel for Victims The Office of Public Counsel for theDefenceStates’ RepresentativesREGISTRYAmicus CuriaeRegistrar
Ms. Silvana Arbia, Registrar
Deputy Registrar
Mr. Didier Daniel Preira, DeputyRegistrar
Counsel Support SectionVictims and Witnesses Unit Detention SectionVictims Participation and ReparationsSectionOther
No.
ICC-01/09-02/11
3/18
05 February 2013 I.
INTRODUCTION
1.
The Defence for Mr Uhuru Kenyatta (“Defence”) requests Trial Chamber V(“Chamber”) to refer the Decision on the Confirmation of Charges
1
(“ConfirmationDecision”) back to Pre-Trial Chamber II (“PTC”) pursuant to Article 64(4) of the RomeStatute for reconsideration in order to avoid a serious miscarriage of justice in the present case.2.
Referral by the Chamber to the PTC of this preliminary issue is necessary in order toensure the fair and effective functioning of the proceedings and maintain the integrity of the Court for the following reasons:a.
Essential facts underpinning the Confirmation Decision by the PTC are no longer relied upon by the Prosecution as evidence in support of the charges, as they arenow known to have been falsely alleged by a witness relied upon for those proceedings. The Prosecution’s disclosure of its case in the “Prosecution’s provision of materials pursuant to Decision ICC-01/09-02/11-451”
2
contradict thefindings upon which the Confirmation Decision was based.
b.
The Confirmation Decision and the hearing on the confirmation of charges(“Confirmation Hearing”) have been rendered unfair by reason of theProsecution’s failure
3
to draw the attention of the PTC to crucial evidenceundermining its case,
4
the failure of the Single Judge to properly satisfy herself asto the true nature of the OTP-4 statement and her consequent authorisation of non-disclosure to the Defence of the same or a summary thereof.
5
c.
In the circumstances, the Confirmation Decision was decided by the PTC basedupon fraudulent evidence.
1
ICC-01/09-02/11-382-Conf.
2
ICC-01/09-02/11-596-Conf Anx A,B,C,D.
3
In particular, the Defence refers the Chamber to the Prosecution’s 15 August 2011 application and associatedannexes requesting,
inter alia,
the continued non-disclosure to the Defence of evidence concerning a statementmade by OTP-4 (KEN-OTP-0043-0083 (“OTP-4 Statement”)),ICC-01/09-02/11-241-Conf-Exp (“15 August2011 Application”).
4
OTP-4 Statement, para. 33.
5
ICC-01/09-02/11-254-Conf-Exp (“18 August 2011 Decision”), p.9.
Search History:
Result 00 of 00
00 results for result for
p.
OTP APPLICATION CONFIRMING WITNESS 4 IS OFF
Star witness Kicked off ICC process
653
Reads
3
Readcasts
3.5K
Embed Views
Recommended
More From This User
Notes
Load more
