Congo-Kinshasa: Defense Says a Virtual Appeals Hearing Would Disadvantage Ntaganda

Bosco Ntaganda's lawyers have cautioned that, should International Criminal Court (ICC) judges consider holding his appeals hearing through online platforms, they should be mindful of the logistical challenges and fair trial considerations that would arise. Judges scheduled the appeal hearing for June 29 to July 1, 2020 at the seat of the court in The Hague.

The defense listed several requirements that, at a minimum, a platform for a virtual ICC appeal hearing must have. They said any virtual hearing must allow for simultaneous display of multiple images; real-time French to English interpretation and transcription; privileged consultations between Ntaganda and his lawyers; closed sessions for reference to confidential evidence; and the ability for Ntaganda to be held in a location where he can participate in open and closed sessions and to potentially address the Appeals Chamber directly. The defense also said it would be necessary to facilitate public access to the hearings.

In May 5 submissions, defense lawyer Stéphane Bourgon said it is unclear whether any defense team members would be able to acquire the software and hardware required for a platform of this complexity or sufficient broadband connections to run it. He added that it might be impossible to maintain the confidentiality of the proceedings when parties are pleading from their homes.

The Appeals Chamber will hear arguments on Ntaganda's appeals against his conviction and sentence during the hearing. Bourgon argued that, besides technical obstacles, an appeal hearing is a unique opportunity for parties to interact with judges and to engage in unscripted and spontaneous exchanges. He said a virtual hearing, regardless of the sophistication of the technology used, could hardly replicate these exchanges.

The defense lawyer contended that virtual communication is more stilted, and he quoted a 2017 study that argued "subtle facial movements, non-verbal cues and peripheral actions, important for interpreting speech, are hard to detect in video-mediated communication," while responses that are essential for assessing how a person receives a message, are similarly hard to gauge.

Bourgon said fair trial advocates have recently recommended that non-urgent criminal trials should not take place if the defendant cannot be physically present in court for public health reasons. This, he argued, is applicable to appeal hearings where the defendant maintains his rights to be present and to have adequate time and facilities to prepare for what must be a public hearing.

According to Bourgon, studies conducted about remote criminal hearings before the COVID-19 pandemic consistently highlighted the disadvantage at which virtual hearings put defendants, such as by impairing their access to lawyers. He cited studies that suggested that judges may be more punitive towards defendants they see on screen and that virtual hearings have a detrimental effect on defendants because "sitting in a remote video link facility for a lengthy period could be mentally exhausting and alienating."

Moreover, the defense submitted that there is no provision in the ICC's statutory documents for defendants attending hearings via video-link in any circumstances other than as a sanction for continual disruption of proceedings. The defense argued that this might be because virtual hearings in criminal cases risk incompatibility with several rights, including the right of the accused to a public trial; to have adequate time and facilities for preparing the defense; and to be tried in his or her presence. Virtual hearings could also affect a defendant's ability to take part fully and effectively in their own criminal proceedings, the defense said.

According to the defense, the court's statute distinguishes between actual presence to which an accused has a right and constructive presence via video-link. It said the latter is an "exceptional circumstance" under Article 63(2), which can be instituted if an accused "continues to disrupt the trial" and only "after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required."

Meanwhile, the defense reported difficulties in remotely accessing ICC digital tools, including the virtual working platforms and database, which it said are "extremely slow" and often inaccessible for hours at a time. This has reduced the defense's access to exhibits, transcripts, and court records. It also said the e-portal filing system experiences similar delays and is sometimes unavailable.

The court closed its detention center to visitors on March 16, 2020. As a result, the defense noted, taking instructions from Ntaganda has become "more complicated, time-consuming, and less effective." The defense has asked judges to consider these challenges before issuing instructions on deadlines of filings and on the conduct of the appeals hearing.

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