15 March 2016

Central African Republic: Defense Lawyers' Payments to Witnesses in Focus At ICC Trial

The nature and amount of payments made to witnesses called to testify in trials at the International Criminal Court (ICC) has been in focus in the witness tampering trial of former Congolese opposition leader Jean-Pierre Bemba, his former lawyers, and two other associates.

The issue of payments to witnesses is at the heart of the trial, which opened last September. Prosecutors claim that Bemba, through his former lawyers and other associates, made payments to witnesses as an inducement for them to provide false testimony.

Furthermore, the prosecution alleges that defense lawyers coached witnesses and maintained improper contacts with them - including making phone calls to the witnesses while they testified for Bemba in his trial for war crimes and crimes against humanity.

Simo Matti Severi Väätänen, former head of the Victims and Witnesses Unit (VWU) at the ICC, testified about practices of international tribunals in relation to payments to witnesses. From his evidence, the defense sought to establish that payments made by Bemba's lawyers were neither excessive nor prohibited according to the practices of the ICC and other international justice tribunals.

According to Väätänen, the VWU did not play a role in making or determining payments to witnesses during defense or prosecution investigations. The exception was for individuals in a witness protection program, in which case the unit facilitated the travels of such individuals to meet the investigators.

"If the witness was not in the witness protection program, was it right that VWU played no role with regard to expense of those witnesses?" asked Steven Powles, defense lawyer for Aimé Kilolo Musamba.

"Until I departed in June 2013, the VWU did not play any role in paying any expenses for witnesses who came to meet investigators," answered Väätänen. "And I suspect that this practice continued because it's not the role of the unit to be involved in that manner in investigations." He said the unit was not aware of how much money the defense or the prosecution paid to witnesses.

Väätänen said it would be reasonable for a party to reimburse the costs incurred by an individual to travel to interview locations. He added that, whereas the VWU could have advised the parties to use the same standards as used by the unit for such payments, it did not have the mandate to instruct parties.

Väätänen stated that the VWU provides reimbursements for any "reasonable expense" related to travel, accommodation, lodging, and "incidental allowances" or pocket money to cater for other expenses related to the stay of a witness in a specific location during testimony.

The court also offered an "attendance allowance" to compensate time and loss of earnings for the duration that a witness is away from their residence. The attendance allowance was tied to average earnings in the home country of the witness to ensure that while the amount was fair compensation, it did not induce someone to testify before the court.

Where a witness suffered substantial economic loss as a result of testifying in a trial, an "extraordinary allowance" was provided. Väätänen said this could be the case for a farmer required to testify during harvest time when they stand to lose their crops.

Powles asked about the appropriateness of a party covering any additional expenses that the VWU may not have covered while the witness was testifying.

He cited paying school fees for a witness's child, buying a witness a truck for commercial purposes, providing furniture for a house, or erecting a fence around a witness' house. It appears these are some of the payments made by Bemba's associates to witnesses who testified for him in his first trial.

Väätänen responded that as part of the VWU's responsibility to look after the needs of a witness, such payments could be made. However, a decision would be based on an evaluation of individual cases.

"It is absolutely necessary in instances where the witness is the bread winner or has children who depend on them... in order to make it possible for that witness to come and testify," said Väätänen, regarding assistance to families of witnesses.

Witness D213, the first witness called by the defense, testified earlier this month that he received CFA Franc 300,000 (US$500) from people associated with Bemba to help transport his son from the Central African Republic to the country where the witness lived as a refugee.

The prosecution claims that besides bribing witnesses, Kilolo - who was Bemba's lead lawyer - phoned seven defense witnesses and sent text messages to an undisclosed number of witnesses during the period of their testimony.

In his testimony, Väätänen said any contacts between a party and witnesses during their testimony were regulated by the chamber and would have to be arranged through the VWU. "In principle the calling party doesn't even know where this witness is staying but in practice people have mobile phones," he said.

Presentation of the defense case continues tomorrow.

Central African Republic

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