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

Judiciary – Key Decisions Protection and Protective Measures
‘there is a proper legal basis for the accused to seek
provisional release at the trial stage of proceedings’. 2201
The Chamber determined that Article 60 of the Rome
Statute gives the Pre-Trial Chamber the authority to
consider release before the commencement of trial,
and that Article 61(11) provides that the Trial Chamber
may exercise any function of the Pre-Trial Chamber
during the trial phase. Accordingly, it found that it
could hear the accused’s request for release ‘at any
time’, as specified by both Article 60(3) and Rule 118(2)
of the Rules of Procedure and Evidence.
Pursuant to Article 60(3), the Chamber can modify
its prior order on detention only ‘if it is satisfied that
changed circumstances so require’. The Chamber
found that the accused had the financial resources, the
personal connections, and the motive to abscond, and
that no change in circumstances negated this flight
risk when considered in the context of the factors
bearing on continued detention.
The Chamber also considered the security situation
of victims and witnesses if the accused were released
under any of the three applications to find that
‘releasing the accused for any meaningful period
would increase his ability to interfere with witnesses’,
particularly as two witnesses who had not yet testified
were placed in the ICC Protection Programme as the
result of the Court’s threat assessment. 2202
On 24 August, the Defence filed another application
for provisional release to the DRC prior to 5 September
to allow the accused to obtain his voting card and
to file his candidacy for the upcoming presidential
and parliamentary elections. 2203 The Chamber again
found no change in circumstances requiring release. In
addition, the Chamber ordered the Defence to submit
a public redacted version of the Request for Provisional
Release, as there was no sufficient basis for its
confidential treatment. On 1 September, the Defence
filed an urgent appeal of this decision to the Appeals
Chamber pursuant to Article 82(1)(b). 2204
2201 ICC-01/05-01/08-1565-Red.
2202 ICC-01/05-01/08-1565-Red, paras 63-65.
2203 ICC-01/05-01/08-1672, para 1.
2204 ICC-01/05-01/08-1690.
On 12 September 2011, a majority of the Appeals
Chamber, with Judge Ušacka partially dissenting,
reversed the decision of the Trial Chamber as to the
accused’s second request for interim release and
directed it to reconsider his request. 2205 The Appeals
Chamber based its reasoning primarily on the first
ground of appeal as set forth by the Defence, which
claimed that the Trial Chamber misappreciated the
assurances provided in the letter and observations
submitted by the potential host State (the name of
which was redacted this decision and all related filings)
in reaching its determination that it did not provide
sufficient guarantees against his flight.
At the outset of its decision, the Appeals Chamber
set forth the appropriate standard of review: ‘where
clear errors of law, fact or procedure are shown to
exist’, it must reverse. 2206 Existing jurisprudence
holds that a Chamber commits clear error ‘if it
misappreciates facts …’ 2207 Using this standard,
the Appeals Chamber held that the Trial Chamber
misappreciated the letter and observations from the
potential host State ‘because it did not read them in
context with Mr Bemba’s Letter’. 2208 Read as a response
to the questions posed by the Bemba Defence in its
letter to the State, the Appeals Chamber found that
the documents did in fact provide the guarantees
sought by the Trial Chamber as to the State’s ability to
ensure the accused’s return to the Court. In addition,
the Appeals Chamber found clear error in the Trial
Chamber’s determination that the State, and not
itself, was charged with imposing conditions upon the
State’s custody of the accused; under Rule 119(1) this
authority resides with the Court. 2209 Lastly, the Appeals
Chamber determined that in a situation in which a
State has indicated a general willingness to accept a
detained person and enforce any imposed conditions,
the Trial Chamber must ‘seek further information
from the State if it finds that the State’s observations
are insufficient to enable the Chamber to make an
informed decision’. 2210
In its filing, the Defence had also argued that the Trial
Chamber’s determination that interim release of the
accused would interfere with the proceedings of the
Court was in error. 2211 The Appeals Chamber agreed
with the Defence, finding that the starting point for
a Chamber’s review of detention under Article 60(3)
was the immediately prior decision on detention. In
this instance, the most recent ruling on the accused’s
2205 ICC-01/05-01/08-1626-Red.
2206 ICC-01/05-01/08-1626-Red, para 44.
2207 ICC-01/05-01/08-1626-Red, para 45.
2208 ICC-01/05-01/08-1626-Red, para 51.
2209 ICC-01/05-01/08-1626-Red, para 53.
2210 ICC-01/05-01/08-1626-Red, para 55.
2211 ICC-01/05-01/08-1626-Red, para 63.
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