Cablegate: Ethiopia: Court Goes On Recess in Cud Trial,

DE RUEHDS #2179/01 2211555
P 091555Z AUG 06





E.O. 12958: N/A


1. (SBU) SUMMARY. In the case against detained opposition
Coalition for Unity and Democracy (CUD) leaders, independent
journalists and civil society representatives, the court has
been hearing arguments regarding admissibility of additional
documentary evidence presented by the prosecution. Once this
final portion of documentary evidence is completed, the
prosecution plans to move on to the witness stage of the
trial. However, the court has gone on summer recess, so the
bench will not hear this evidence until October 5. Prisoner
conditions continue to be an issue, though Berhanu Nega was
recently moved to a better cell following his request and at
the suggestion of his physician. In the final court session
prior to recess, a number of prisoners expressed concern over
the prison conditions during the two-month recess, requesting
that the court continue to monitor the variety of issues they
have raised. END SUMMARY.

2. (SBU) As has been the case throughout the trial,
international observers attend each session. Michael Ellman,
the human rights attorney contracted by the European Union to
observe the trial, departed on July 28. He will be replaced
by another EU observer, as yet unnamed. Lawyers Without
Borders continues to send Ethiopian attorney Semere Kassaye
to every session; however American observers have not
attended since July 14. Semere later informed Poloff that
LWOB has not sent additional American observers due to the
recent infrequency of trial dates, as well as lack of clarity
on when court would recess.


3. (U) Defendants present in court continue to appear in good
condition. Defendant Getachew Mengiste, hospitalized for
several weeks following surgery, returned to court and was
warmly greeted by fellow defendants. Journalist Serkalem
Fassil also returned to court following extended
hospitalization after premature delivery of her baby, who is
now under the supervision of Serkalem's mother.

4. (SBU) Following requests to the court by defendant Berhanu
Nega for transfer from his current cell shared with over 250
other inmates, as advised by his doctors, the bench ordered
prison officials to relocate him to a cell more suitable for
his fragile health condition. Berhanu was moved on July 27
to a cell with fellow defendant Mesfin Wolde-Mariam.
Berhanu,s Amcit wife, Nardos Minassie, informed Poloff that
his conditions are now significantly better and meet the
guidelines of his physician.

5. (U) In addition to Berhanu, a number of other defendants
had previously raised complaints to the court regarding their
conditions while in prison. The bench did not respond
individually to each case, but rather deliberated and gave a
blanket ruling on July 19 stating that, "Judges at all levels
(in the Ethiopian judicial system) have the obligation to
observe the constitution and constitutional procedures, as
well the human rights of individuals. Different articles of
the constitution protect prisoners, and the Commission for
Human Rights has the right to observe prison conditions.
However, the complaints by the defendants are numerous and
with little evidence. Complaints, such as living in a
corrugated metal room with little light and ventilation, are
not supported by objective evidence. Therefore, regarding
the complaints by defendants that they are living in poor
conditions, we cannot give any ruling." The exception to
this was the bench's instruction to move Berhanu.

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6. (U) Following the audio phase of evidence, the prosecution
presented the original 91 documents submitted as evidence in
January (reftel). They then intended to present 88
additional documents discovered since the start of the trial,
and admitted by the bench as evidence. However, on July 24,
as the prosecution was preparing to begin presentation to the
court of the 'explanation' of the these 88 documents, the
defense attorney for the ActionAid representatives (Daniel

ADDIS ABAB 00002179 002 OF 003

Bekele and Netsanet Demissie) objected, saying that the
defense had only that morning received a copy of the
documents from the prosecution, and that they were entitled
to review them prior to presentation. Further, they
requested to cross-check the evidence with the court
registrar, as a number of documents lacked the official court
seal signifying official evidence. The bench granted a
one-week period for review. On July 31, the defense
attorneys and defendants Daniel Bekele and Netsanet Demissie
read an extensive statement proclaiming that the 9 of the 88
documents that pertain to them are inadmissible and asking
that they be thrown out, asserting that this evidence:
-- Was found illegally: the police obtained some material
without a search warrant;
-- Is not authentic: that the documents had been falsified;
-- Had no court seal to show they had been cross-checked with
the original by the court registrar; and
-- Is based on hearsay.

In addition to the 8 documents that refer specifically to
them, they complain that the evidence:

-- Is redundant to previously submitted evidence; and
-- Contains printouts from the internet, "copies of which are
in many homes and offices in Ethiopia, probably even the
Prime Minister's."
-- Contained 10 documents produced after the charges were
filed against the defendants.

In their argument, Daniel cited articles in the criminal code
to support inadmissibility. Additionally, they pointed out a
number of errors that the prosecution had made in the
'explanation' of the documentary evidence, citing a number of
incorrect references and other administrative oversights.
They then used the above arguments to criticize the
prosecution for the quality of the total body of evidence
thus far produced against them, and further argued that their
detention in light of such evidence is a violation of their
rights. Despite further protests from the defense, the bench
provided the prosecution three days to prepare a response.

7. (U) On August 4, lead prosecutor Shemelis Kemal read a
40-minute statement addressing the criticisms made by the
defense. He began by stating that it is not only these 9
documents that refer to the ActionAid defendants (as they
claimed), but in fact all of the 88 newly introduced
documents should be considered as evidence against them. His
reasoning was that since the prosecution considers all the
defendants to be acting in "conspiracy in unison," then all
the evidence that is presented is against all defendants. He
went on to say, "The defendants involved in this conspiracy
are equally responsible and should be held equally
accountable." Regarding the complaint that some evidence was
found illegally, the prosecution stated that under Ethiopian
law, unless the evidence was collected by force (for which he
said there is no proof in this case), then the evidence
cannot be considered "illegally collected" if there was
indeed a search warrant. In response to the claim that some
evidence was not authentic, the prosecution said some
documents are from the internet and that information on the
internet "cannot be manipulated without permission from the
webmaster of a site" or "without a password," and therefore
it is impossible that the evidence was forged. Regarding the
accusation that some evidence is hearsay, the prosecution
said the disputed evidence are letters written by fellow
defendant Elias Kifle (being tried in absentia) and that,
furthermore, there is no specific law in Ethiopia that
prohibits the use of hearsay as evidence. In addressing the
ten documents produced after charges were filed against the
defendants, the prosecution said, "This does not matter.
What matters is that they support the charges."

8. (SBU) The bench announced it would rule on the
admissibility of the additional documents until October. At
the end of the August 4 session, the bench announced a recess
until October 5, observing the traditional summer break by
the High Court of Ethiopia. Shemelis privately informed
Poloff that once the documentary evidence has been presented,
the prosecution will call witnesses, but could not say how
many (the original list suggested approximately 300). One of
the other prosecutors separately acknowledged that the list
of witnesses would be "shortened a bit."

ADDIS ABAB 00002179 003 OF 003

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9. (U) The August 4 announcement that the court would be on
recess sparked a number of protests by defendants, as the
only channel for their complaints will be through prison
officials. The series of issues began with defendant
Andualem Arage complained that he and fellow defendant
Eskinder Nega had recently been put into solitary confinement
for three days, with no reason provided. He further
complained that he has been suffering a heart condition and
has not received treatment. Upon being asked what he knew of
the matter, the Director of Kaliti prison (who attends each
session) answered simply, "Nothing." Defendant Birtukan
Mideksa then stood and began shouting at the judges, stating,
"These two defendants have complained about their treatment,
but we all have these problems. We all face the same threat
of being put in solitary!" She went on to say, &When the
court goes on recess for 2-3 months, we will continue to be
treated like this. Our suffering will be the responsibility
of the bench. If the courts are concerned with human rights,
they must look into this issue during the rainy season."
Defendant Netsanet Demissie followed with a request for a
list of anticipated prosecution witnesses so defendants could
prepare their defense during the recess. Shemelis
interjected that the bench previously ruled that witnesses
would not be disclosed. He continued by saying, "If the
defense wants to prepare their case for the witness, they
will be allowed some time (at that point)." The judge did
not issue a ruling or opinion on the matter. Several
defendants reminded the court that they have thus far been in
prison for 9 months, and would now be held for two more while
the judges are on leave.

10. (U) The lead judge responded that the court has been in
session "very frequently" and had planned to proceed quickly
with the case. "We think we have been moving fast, but we
can't make the schedule for the courts," he said. The bench
concluded the session by ruling that the corrections
department of Kaliti should provide an explanation to the
court about the complaints of the prisoners, and that prison
officials should inform prisoners why they are being
punished. He also stated that if defendants have a complaint
regarding their treatment during the recess, they could file
a grievance with the appropriate department with the prison.


11. (SBU) Since mid-July (reftel), no new evidence has been
presented in court. Instead the bench has heard arguments by
the prosecution and defense regarding the large amount of
additional documentary evidence introduced by the
prosecution. The arguments by defendants Daniel Bekele and
Netsanet Demissie and their defense attorney on this matter
were very thorough, fluent, and well articulated. Their line
of reasoning was the most well-substantiated and
comprehensive of any legal argument heard in the trial for
some time. The prosecution, however, seemed somewhat
flustered by the barrage of criticisms (which were both
procedural and substantive in nature) against the evidence
they introduced. In contrast, the prosecution's rebuttal
seemed disjointed. The treatment of prisoners continues to
be a matter of concern. Though Berhanu Nega has received
better treatment following his plea, other less well-known
prisoners have not had their complaints fully addressed by
the court. During the two-month recess, which takes place
during the rainy season in Ethiopia, conditions at the prison
could worsen. Post will maintain close contact with detainee
family members who regularly visit the prison in order to
monitor conditions or issues that may arise.

© Scoop Media

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