Blow to Gicheru as plea to suspend ICC trial declined

Mr Gicheru argued that further rulings by judge Samba would jeopardise the fair trial rights of the defence and therefore requested that the status conference and all proceedings be suspended until a decision is taken by the plenary on the pending disqualification request.

But the judge found that the defence had not presented any argument that warranted a temporary stay of proceedings.

She ruled that a stay of proceedings, whether temporary or permanent, is an exceptional measure or a drastic remedy.

"Such a measure can only be imposed when it has become impossible to continue the proceedings without infringing the fundamental rights of the accused. Accordingly, the threshold for a chamber to order a temporary stay of proceedings is high. The arguments presented by the defence fail to meet this high threshold," stated the judge.

Mr Gicheru, who after surrendering to the court in The Hague last November appeared to be in a hurry for the trial, had argued that a stay would be necessary “in the interest of justice”.

The chamber noted that he did not offer any further substantiation.

"A request for disqualification does not automatically justify a temporary stay of proceedings. The chamber further notes the trial is still in the preparatory phase. During this phase, the chamber will not evaluate any evidence which will form the basis of its judgment pursuant to Article 74(2) of the Rome Statute," said the judge.

She stated that the planned status conference and any decision taken in relation to its purpose (for example, setting the start date of trial) are procedural in nature.

The defence did not explain why these steps could not be taken pending the outcome of its request for disqualification, she pointed out.

"Indeed, the defence fails to explain how the prior employment of judge Samba with the Office of the Prosecutor or her limited and purely logistical involvement in the Kenya situation would risk prejudicing the defence when it comes to matters of trial management," she said.

The defence wants her out of the case because of her past involvement in investigations and knowledge of matters concerning Kenya and the 2007 post-election violence.

The judge, however, argued that even if the request for disqualification is granted, the defence may file a request to amend any decision by judge Samba with the new chamber that would be allocated the case.

"No prejudice to the defence –permanent or otherwise – is caused by continuing the preparation of the proceedings, let alone any prejudice which would justify a temporary stay of proceedings," she stated.

On the contrary, she said the chamber considers it necessary to take preparatory measures and advance the proceedings and the preparation in order to ensure the trial starts in an expeditious manner.

With regard to the decision to file the request as confidential, the judge reminded the parties (both the defence and the prosecution) of the principle of publicity of the proceedings, which mandates that there needs to be a specific justification to file submissions as confidential.

"The mere fact that a filing makes reference to non-public documents does not mean that it has to have the same level of classification. Only if mentioning the filing would defeat the purpose as to why the other document was classified as ‘confidential’, should result in the filing not being public," said the judge.

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