Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary – Key Decisions Protection and Protective Measures
Interim release
During 2011, the Court issued several decisions
on the interim release of the accused in the
Bemba and Mbarushimana cases. 2189 This is an
issue with potentially serious implications for
the safety and security of witnesses and victims,
particularly where Court proceedings have led to
their identities being revealed to the accused or
their supporters.
The Pre-Trial Chamber has the authority to grant
the interim release of an accused under Article
60(3). This provision requires the Chamber
to periodically review the detention of the
accused and to alter its decision(s) on continued
detention if ’changed circumstances so require’.
However, a person shall continue to be detained
for as long as the Pre-Trial Chamber is satisfied
that the conditions set forth in Article 58(1) are
met. These conditions include that the Chamber
must continue to find reasonable grounds to
believe that the person has committed a crime
within the jurisdiction of the Court. Second,
the Chamber must find that the continued
detention of the person appears necessary
to ensure his or her appearance at trial, to
preclude the obstruction or endangerment
of the investigation or proceedings, and to
prevent the accused from committing the
same or crimes related to those for which he is
accused. Pursuant to Article 60(2), if one of these
conditions is not met, the Chamber must release
the person, with or without conditions.
The Prosecutor v. Jean-Pierre Bemba Gombo
On 7 July 2010, noting that Bemba’s detention was
due to be reviewed before 30 July, the Trial Chamber
ordered the Prosecution, the participating victims and
the Defence to submit observations on the review of
Bemba’s detention. These submissions were filed on 15
July 2010 by the Prosecution 2190 and the participating
victims 2191 and on 22 July 2010 by the Defence. 2192
On 28 July 2010 Trial Chamber III rendered a decision
on its review of Bemba’s detention, ordering his
continued detention. 2193 This decision was appealed
by the Defence on 29 July 2010. 2194 On 19 November
2010, the Appeals Chamber issued its decision on the
appeal, directing Trial Chamber III to carry out a new
review of Bemba’s detention and possible interim
release under Article 60(3). 2195 It determined that the
Chamber did not adequately set forth its reasoning for
rejecting Bemba’s request for interim release, and that
it improperly restricted its considerations to only the
arguments put forth by Bemba. The Appeals Chamber
reversed Trial Chamber III’s decision and ordered it to
conduct a new review of Bemba’s detention.
In again rejecting Bemba’s request for interim
release pursuant to the Appeals Chamber order, on
17 December 2010, Trial Chamber III found that there
had been no change in circumstances that warranted
release. Rather, it found that the only two changed
circumstances (the commencement of trial and the
affirmation of admissibility) favoured continued
detention and did not mitigate in favour of his
release. 2196 Bemba was released very briefly in January
2011 to attend his stepmother’s funeral in Belgium,
subject to strict conditions. 2197
Between 3 May and 10 June 2011, the Bemba Defence
confidentially filed three applications for release of
the accused: one interim, 2198 one provisional, 2199 and
one ‘to leave detention’ to travel to the DRC in order to
register for the upcoming elections. 2200 In its decision
of 16 August 2011 rejecting all three applications, Trial
Chamber III reviewed, as a threshold issue, whether
2189 ‘Interim release’ is the judicial term for the practice
of releasing an accused from custody in the period
between his or her initial arrest and the conclusion of
trial proceedings against him or her.
2190 ICC-01/05-01/08-828-Conf-Exp, a public redacted version
was filed simultaneously as ICC-01/05-01/08-828-Red.
2191 ICC-01/05-01/08-825.
2192 ICC-01/05-01/08-840-tENG.
2193 ICC-01/05-01/08-843.
2194 ICC-01/05-01/08-844-tENG. A document in support of
appeal was submitted on 4 August 2010 (ICC-01/05-
01/08-847-tENG-Corr).
2195 ICC-01/05-01/08-1019.
2196 ICC-01/05-01/08-1088.
2197 ICC-01/05-01/08-1099-Red.
2198 ICC-01/05-01/08-1565-Red.
2199 ICC-01/05-01/08-1565-Red.
2200 ICC-01/05-01/08-1565-Red.
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