ICC Trial Chamber vacates charges against Ruto & Sang: Tuesday, 5 April 2016 Trial Chamber V(A) of the International Criminal Court decided by majority that the charges against William Samoei Ruto and Joshua Arap Sang are vacated and the accused discharged without prejudice to future prosecution.
The panel, composed of Presiding Judge Chile Eboe-Osuji, Judge Olga Herrera Carbuccia, who appended a dissenting opinion, and Judge Robert Fremr, considered the requests of Mr. Ruto and Mr. Sang that there was “no case to answer” as well as the submissions by the Prosecutor and Legal Representative of the Victims, and submissions during hearings from 12-15 January 2016 as well as the evidentiary record through 10 September 2015 in making the decision to vacate the charges and discharge the accused.
Judge Fremr and Presiding Judge Eboe-Osji provided separate reasons for the decision, however both agreed that that there was not sufficient evidence presented by the prosecution on which a reasonable Trial Chamber could convict the accused. They also agreed that acquittal was not the right outcome, and that there was no reason to recharacterize the charges.
Judge Fremr stated that the Prosecution did not present sufficient evidence on which a reasonable Trial Chamber could convict the accused. Judge Eboe-Osuji concurred with Judge Fremr’s assessment of the evidence, but also stated that he “prefer[s a] declaration of a mistrial as the right result” due largely to concerns over the availability of evidence to the prosecution and possible witness tampering. Judge Fremr disagreed that a mistrial should be declared but did note his similar concerns on the grounds stated by Presiding Judge Eboe-Osuji.
Judge Herrera Carbuccia, in an appended dissenting opinion, stated that in her view the charges should not be vacated because it would constitute a departure from the legal standard established in a 3 June 2014 decision. Judge Carbuccia stated that there is sufficient evidence which if accepted could lead a reasonable Trial Chamber to convict the accused.
Ruto and Sang had been accused crimes against humanity in the context of post-election violence in Kenya in 2007-2008 that resulted in the death of more than 1300 people. The trial against the accused opened on 10 September 2013 and lasted 157 days. At the close of the Prosecution’s case the evidentiary record contained over 8000 pages worth of documentary evidence as well as photos, maps and other media. After the close of the Prosecution’s case the Trial Chamber admitted five recanted statements by witnesses for the Prosecution, a decision which was overturned by the ICC Appeals Chamber on 12 February 2016. (ICC Press Release, theguardian, BBC, full public redacted version of the Decision on Defence Applications for Judgments of Acquittal here and Annex I Dissenting Opinion of Judge Herrera Carbuccia here)
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