ICC judge clears lawyer on Muthaura's team

The International Criminal Court (ICC) has allowed a former lawyer who served in Prosecutor Luis Moreno Ocampo's office to continue representing head of Civil Service Francis Muthaura in the case against him.

Pre-Trial Chamber II judge Ekaterina Trendafilova rejected the prosecutor's application to block Mr Essa Faal from representing Mr Muthaura arguing that he was privy to information on the Kenyan case.

The judge said that although Mr Faal was on the notification list of confidential filings, he had never accessed a confidential document concerning the case.

She however cautioned the defence that the decision will be kept under review as the case progresses.

"If the Chamber identifies throughout the proceedings that any significant facts were not available at the time of this current assessment, and which reveal that Mr Faal was privy to confidential information, it shall not hesitate to invalidate his appointment. As such, the present decision should not be perceived as a carte blanche encouraging practices that might compromise the interest of justice in the future," the judge said.

Mr Muthaura's lead counsel Karim Khan has hired Mr Faal and Ms Shyamala Alagendra who also formerly worked in the ICC’s prosecution office to join the defence team.

The addition of the two to Mr Muthaura’s legal team sets the stage for a serious legal battle at The Hague with the combination of Ms Alagendra and Mr Faal as insiders who have joined Mr Khan and Ken Ogeto.

The Chamber had asked Mr Muthaura and the Prosecutor to make observations on the matter to allow it to determine whether the lawyer should continue serving in the civil service boss' defence team.

On July 1, Mr Moreno-Ocampo, filed his observations in which he provided the Chamber with information that tend to prove the existence of conflict of interest, as far as Mr Faal continues to represent Mr Muthaura and his appointment is maintained.

The Prosecutor argued that Mr Faal received "weekly internal reports that summarised confidential filings, decisions, hearings and other matters."

On the same date, the Chamber received a report prepared by the Division of Court Services within the Registry revealing all actions preformed on documents stored in the document storage system.

In particular, the Court Management Section checked whether Mr Faal received notification emails sent in the Kenya situation and the related cases, whether he viewed confidential and under seal documents and whether he had real time access to the transcripts of "closed proceedings".

But the judge ruled that the prosecutor has not proved that Mr Faal was privy to the information as alleged.

She added that this conclusion is even supported by the Registry's Report which shows that, although Mr Faal was on the notification list of confidential filings, he had never accessed a confidential document concerning the case.

"The Single Judge is not persuaded by the Prosecutor's arguments given that upon review of the Prosecutor's Observations and Reply as well as the annexes appended thereto, there is a lack of proof that Mr Faal actually was aware of confidential information concerning the case," Judge Trendafilova ruled.

Article 12(l)(b) of the ICC Code of Conduct indicates that "a counsel shall not represent a client in a case, where he/she was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear".