ICC Appeals Chamber delivers its judgments on the appeals regarding the interim release of Mr Jean-Pierre Bemba Gombo, Mr Aimé Kilolo Musamba, Mr Fidèle Babala Wandu, Mr Jean Jacques Mangenda Kabongo and Mr Narcisse Arido in the proceedings pursuant to article 70 of the Statute.
Today, 29 May 2015, the Appeals Chamber of the International Criminal Court (ICC) reversed and remanded to Trial Chamber VII the decision of Pre-trial Chamber II, issued on 21 October 2014, in which the Pre-Trial Chamber ordered the interim release of four suspects in the case The Prosecutor v. Bemba et al. However, the Appeals Chamber found that, taking into account the length of time that has passed since their release, it would not be in the interests of justice for the suspects to be re-arrested.
In a separate judgment also rendered today, the Appeals Chamber reversed and remanded to Trial Chamber VII the decision of Pre-Trial Chamber II, issued on 23 January 2015, ordering Mr Bemba’s interim release in the context of this case.
On 21 October 2014, Judge Cuno Tarfusser, Single Judge of Pre-Trial Chamber II, reviewed proprio motu the detention of Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido and ordered their release subject to the condition that they appear for trial or whenever summoned. The four suspects were subsequently released from the custody of the ICC. While Jean-Pierre Bemba Gombo, the fifth suspect in this case, was released by the Pre-Trial Chamber, he remains in detention in connection with ongoing proceedings in another case before the Court, The Prosecutor v. Jean-Pierre Bemba Gombo. All of the suspects were released on the basis that the time they had spent in detention pending trial had become unreasonable. The ICC Prosecutor appealed the Pre-Trial Chamber’s two decisions.
Judge Silvia Fernández de Gurmendi, on behalf of Judge Sanji Mmasenono Monageng (Presiding Judge in these appeals) read a summary of the Appeals Chamber’s judgments in open court. Regarding the appeal against the decision releasing the four suspects, the Appeals Chamber explained that the Pre-Trial Chamber incorrectly interpreted and applied article 60 (4) of the Statute, which obliges that Chamber to ensure that a person is not detained for an unreasonable period of time “due to inexcusable delay by the Prosecutor.”
However, the Appeals Chamber held that a Chamber may, even in the absence of such inexcusable delay, determine that a person has been in pre-trial detention for an unreasonable amount of time pursuant to article 60 (3) of the Statute, which provides for regular reviews of detention. The Appeals Chamber held that, in order to make such a determination, a Chamber must balance the duration of detention against the risks listed in article 58 (1) (b) of the Statute justifying detention, to determine whether the continued detention has become unreasonable. Article 58 (1) (b) provides that an arrest is justified to ensure the person’s appearance at trial; or that he does not obstruct or endanger the investigation or the Court proceedings; or to prevent the person from continuing with the commission of crimes within the ICC jurisdiction.
The Appeals Chamber found that the Pre-Trial Chamber erred by not conducting a proper assessment of the risks justifying detention and accordingly not appropriately carrying out the necessary balancing exercise.
For these reasons, the Appeals Chamber reversed the Pre-Trial Chamber’s decision. However, given the specific situation of the suspects in this case, who were ordered to be released on 21 October 2014, and the length of time that has passed since their release, the Appeals Chamber found that it would not be in the interests of justice for the suspects to be re-arrested because of the reversal of the Pre-Trial Chamber Decision. Accordingly, the Appeals Chamber maintained their release until the Trial Chamber now seized of the case decides on the matter.
The Appeals Chamber also reversed the Pre-Trial Chamber’s decision of 23 January 2015 ordering Mr Bemba’s interim release because this decision was essentially based on the same legal reasoning and findings as those made in the decision releasing Mr Bemba’s co-suspects, which the Appeals Chamber had found to be erroneous.
Background: Jean-Pierre Bemba Gombo, his former lead Counsel Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo (a former member of Mr Bemba’s Defence team and case manager), Fidèle Babala Wandu (a member of the DRC Parliament and Deputy Secretary General of the Mouvement pour la Libération du Congo), and Narcisse Arido (a Defence witness) are suspected of offences against the administration of justice allegedly committed in connection with the case of The Prosecutor v. Jean-Pierre Bemba Gombo.
