Jean-Pierre Bemba's lawyers have petitioned judges to suspend proceedings in a new case that the International Criminal Court (ICC) prosecutor has brought against Mr. Bemba.
The defense says monitoring of communications between Mr. Bemba and his lawyers and seizure of privileged defense materials "prejudiced irremediably" his ongoing trial.
"The prosecution has obtained access to privileged information setting out defense strategy and information, which should have been protected by Mr. Bemba's privilege against self-incrimination," defense lawyer Peter Haynes stated in a January 23 filing.
The investigation conducted under Article 70 of the court's founding statute resulted last November into new charges against Mr. Bemba, two of his lawyers, and two aides. They are accused of bribing witnesses and forging evidence.
Mr. Haynes wants judges to order the prosecutor to suspend proceedings in the new case pending litigation over the legality of seizing defense material and monitoring defense communications.
Furthermore, he asked judges to stop the prosecution from accessing or utilizing any materials or information obtained from the monitoring, searches, and seizures concerning the defense.
Mr. Haynes argued that Article 70 proceedings were ancillary to the main criminal proceedings and aimed to ensure the integrity of the proceedings not to undermine them. Given the length proceedings in the main case have taken so far, "Mr. Bemba's right to an expeditious verdict must take precedence over the Article 70 proceedings."
Mr. Bemba has been in ICC custody since May 2008 over alleged failure to stop or punish his Movement for the Liberation of Congo (MLC) troops, who prosecutors claim committed rape, murder, and pillaging. The alleged crimes were committed in 2002 and 2003, when the accused's fighters were deployed in a conflict in the Central African Republic.
While Mr. Bemba's trial opened in November 2010 and saw the defense conclude the presentation of its case last November, new charges were laid against him the same month. He is accused, along with his former lawyers Aimé Kilolo-Musamba and Jean-Jacques Mangenda Kabongo, and two other aides.
"Given the date set for the confirmation hearing in the Article 70 case, it is to be expected that decisions have been and will continue to be issued, which could have significant consequences for the rights of Mr. Bemba in his main trial," said Mr. Haynes. The decision on the confirmation of the new charges is expected in May at the earliest.
When he made his initial appearance as an accused before the court, Mr. Kilolo-Musamba said his iPad and Blackberry were seized during his arrest in Belgium, yet they contained "the entire defense strategy" in the ongoing trial.
The arrest warrant for the five accused stated that ICC investigators tapped phone calls and intercepted emails between Mr. Bemba and his lawyers. The interceptions allegedly showed that the Congolese opposition leader was speaking to witnesses and authorizing payments to them.
In the application for the arrest warrants, prosecutors submitted evidence of money transfers through international services, particularly Western Union and Express Union, as well as telephone call records, transcripts, translations and summaries of recorded communications, text messages, witness statements, and e-mails.
The defense has opposed an application by the prosecution to introduce as evidence into the old case an audio recording, a report, and a financial chart, which the prosecution contends "will demonstrate conclusively" that the testimony of 14 defense witnesses "is that of counsel rather than the witness."
Mr. Haynes stated that the court's Regulation 175 (10) requires the Registrar to notify counsel for the detained person prior to any disclosure of transcripts of monitored conversations. This was not done, he said.
Furthermore, he stated the prosecution believing that the defendant might be engaging in an offence did not in itself create a basis for monitoring privileged communications with counsel nor create a basis for the registrar to disclose transcripts of any other conversations to the prosecution without prior notice and disclosure to the defense.
"The detention facilities should be governed in accordance with the principles of neutrality, and should not be transformed into a partial evidence-gathering organ for the prosecution," he said.
Mr. Haynes hinted that the defense might bring an abuse of process motion in regard to the way the Registrar and the prosecution handled the interception of communications between Mr. Bemba and his lawyers.
He said privileged communication between an accused and their lawyers can only be lifted in two scenarios: if the defendant consented in writing to such disclosure, and if the person voluntarily disclosed content of the communication to a third party and that party then gives evidence of that disclosure. "There are no other exceptions," argued Mr. Haynes.
Judges are yet to pronounce themselves on the defense application.