Thursday 20, May 2010 - Judges: "Prosecution Representative's remarks prejudice the public´s understanding of the trial and bring the Court into disrepute"

In a solid decision, the judges in the Lubanga trial criticise the content of the press interview with the Prosecution Representative, Ms. Beatrice Le Fraper du Hellen, published on Lubangatrial.org in March 2010. In the document, the Chamber "deprecates" Ms. Le Fraper du Hellen´s remarks by declaring that they misrepresented the evidence, criticised the Accused without foundation and intruded on the judges' role by expressing views on matters that have not yet been decided.

Last 17 March, a news report about the trial gatecrashed the court proceedings. Ms. Le Fraper du Hellen, the Head of the Jurisdiction Complementarity and Cooperation Division of the Office of the Prosecutor, had participated in an interview with the web site Lubangatrial.com on the role of the intermediaries, and described them as "very committed persons [and] very supportive of international justice." In addition, Ms. Le Fraper du Hellen commented on the gravity of the alleged crimes and why the Prosecution will ask the judges to jail Thomas Lubanga "for a long time." Her remarks irked the Lubanga Defence team and the three judges.

Throughout its case, Lubanga´s lawyers have claimed that the intermediaries that cooperated with the Office of the Prosecutor coerced witnesses into fabricating falsetestimonies. When addressing this allegation, Ms Le Fraper du Hellen stated that "the intermediaries are the ultimate line of defence for the Defence because [it] has no other argument," and added that the Prosecution was not intending to call the intermediaries as witnesses at that stage of the trial since they "try [to] prove to the judges that [the intermediaries] did not corrupt anything and those are all inaccurate allegations." At the suggestion of a possible request by the Defence to halt the case based on an abuse of the process, Ms Le Fraper du Hellen said: "this is just talk [...] nothing is going to happen. Mr. Lubanga is going away for a long time."

At the hearing on 17 March, the Chamber highlighted its concern with this interview. "I am unaware of any evidence that has been served by the Prosecution in line with those very clear and unequivocal indications," said Presiding Judge Fulford. "Do you think it is appropriate for the Prosecutor, mid way throughout the trial, through his representative, to be telling the public and the judges what the result is going to be of the trial over which we are presiding?" asked Judge Fulford to Prosecution Lawyer Ms. Samson, who at the time bore the brunt of his telling-off. The Judge admitted to being "extremely disturbed" about it.

Subsequently, the Chamber reminded the Prosecution of its duty to disclose to the Defence all material that is relevant to the preparation of the Accused´s defence. "The integrity of the intermediaries and their role is now a critical ingredient of this trial," said Judge Fulford. Therefore, "the Chamber imposes the obligation to the Prosecution to serve all the evidence on which those clear assertions were founded by Ms. Le Fraper du Hellen. [...] If it is alleged by the Prosecution that [the intermediaries] are very committed people and very supportive to international justice [...] it is important to have this issue properly tested before us to see whether or not that suggestion is justifiable," said the Judge.

The Chamber then turned to another quotation attributed to Ms. Le Fraper du Hellen that also caused discomfort: "Mr. Lubanga is making signs to the audience. He is smiling, he is doing a lot of body language - it is very terrifying for the children to testify in front of him." The Bench stated that during the trial, no one had ever suggested that the Accused had conducted himself improperly. The Bench added that this remark involved a clear accusation that the judges were failing to protect witnesses from the alleged terrifying behaviour of the Accused.

On 12 May, and after listening to all parties, the Chamber presented its final decision regarding the press interview. The judges consider that Ms. Le Fraper du Hellen´s remarks prejudice the public´s understanding of the trial and bring the Court into disrepute. "It was inappropriate for the Prosecution Representative to state in unequivocal terms that [the intermediaries] are fantastic, committed people, who support international justice and that they are admired by the Prosecution (particularly given that none of these assessments are supported by evidence that has been given in the trial)," say the judges. "It was additionally inappropriate to describe the witnesses unequivocally as [...] very credible. These are all ´live´ issues that await the Chamber´s determination." In the view of the judges, Ms. Beatrice Le Fraper du Hellen "seriously intruded on the role of the Chamber in her conclusions that there has been no abuse of process by the Prosecution; that the Defence argument is ´just talk´; that the Chamber will reject the Defence submissions; and that the Accused will be convicted, followed by a long sentence."

In addition, in its decision, the Chamber expressed its concern regarding the alleged misbehaviour of the Accused. The judges believe that the representative´s statement, "by failing to refer to any of the protective measures," invites the public to believe that the child soldiers had given evidence whilst confronted by Thomas Lubanga "who was making signs and using body language, thereby frightening them." In its consideration, the Chamber sees this "seriously misleading statement" might create the "false impression that an accused is intimidating witnesses" and "could well serve to discourage others from participating in the Court´s cases."

For the reasons exposed and because members of the public have been excluded from a significant part of the proceedings for security reasons, the Chamber underlines the need for responsible and balanced comments of the case by all those involved in the trial. As the Chamber itself notes, "professional ethic" is expected, as none of the provisions of the Rome Statute framework address the relations between the parties and the press.