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THE HAGUE, Netherlands — Lawyers of former President Rodrigo Duterte are asking the International Criminal Court (ICC) Trial Chamber III to “determine the admissibility
of the eight new incidents included by the Office of the Prosecutor in its Trial Brief, while questioning their documentary evidence as “linked” to former Senator Antonio Trillanes IV.
Duterte’s counsel Peter Haynes requests the Trial Chamber for a “judicial determination” of Incidents 50 to 57 mentioned by the prosecution in its 143-page Trial Brief—whether for the latter to file an amended version or remove the incidents entirely from the document.
Haynes argues that the eight new incidents were added by the prosecution without prior judicial authorization.
“In its Trial Brief, the Prosecution justified its addition of these eight new incidents as falling within the scope of the confirmed charges ‘because they were perpetrated in a ‘time during which and an area where criminal acts were allegedly committed by an identifiable group of perpetrators against an identifiable group of victims,’” Haynes said.
Evidence source
The Document Containing the Charges (DCC) specified 49 incidents in Duterte’s three counts of crimes against humanity. The prosecution’s Trial Brief now lists 57, with the additions at the center of the defense challenge.
Duterte’s defense team said it was notified by the prosecution of the new incidents through an email on August 31 regarding the latter’s submission of its Trial Brief.
Available information about the new incidents show that several happened in the National Capital Region and Region IV-A in 2016, or were victims on an “illegal drug personalities’ watchlist.”
The defense expressed concern over the authenticity and sources of evidence, which they linked to Trillanes, who is known as a critic of the former president.
“The chain of custody reveals that the documentary evidence cited in the Trial Brief in relation to the eight new incidents has a single political opponent of Mr Duterte, Antonio Trillanes, as its source, and these documents – which include purported internal PNP documentation – bear no indication of authenticity.”
In their argument, the defense claimed that Trillanes “has produced all of the newly disclosed PNP Incident Record Forms underpinning these eight incidents” despite having “no known legitimate means of accessing internal PNP documentation.”
Duterte’s lawyers also questioned the new Incident Record Forms for lacking signatures or “an official stamp indicating that they are a ‘certified true copy’ of the original.”
“In light of these evidentiary deficiencies, questions may be raised as to whether these eight incidents would have passed the lower standard of proof applicable at confirmation, had they been included in the original pre-confirmation brief and document containing the charges,” the defense argued.
Judicial oversight
Citing previous ICC cases that discussed adding incidents or amending charges before trial, Duterte’s defense argued that a trial chamber could authorize the prosecution to “add a victim without recourse to Article 61(9)” but not extend it to include a “new incident setting out a new time, place, individual criminal act, principal perpetrator, and victim.”
Haynes also added that “other criminal acts not mentioned in the document containing the charges” should “fall squarely within the facts and circumstances of the charges.”
“It is abundantly clear that judicial oversight is essential, and that the Prosecution cannot merely add to the confirmed charges proprio motu and without judicial authorisation,” Haynes said.
Timing of addition
The defense also submitted that the document containing the charges “no longer match” the current Trial Brief due to the eight new incidents, which they also argue “exceed the scope of the confirmation decision.”
”The Prosecution is now seeking to add eight new incidents based upon fresh evidence that constitute new material facts, not ‘further specification’ of the confirmed charges,” the defense argued.
They also questioned the timing of the prosecution’s addition of the new incidents, which were disclosed only around three months before Duterte’s trial is scheduled to start on November 30.
“Each incident rests upon fresh evidence and seeks to introduce an entirely new set of material facts, meaning authorisation is required,” Haynes said.
No public response from the Office of the Prosecutor to the defense submission has been published as of writing.
Trial Chamber III is also set to hold a status conference today. It remains to be seen whether the dispute over the eight additional incidents will be taken up during the hearing. —VAL, GMA News
