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

Judiciary – Key Decisions Protection and Protective Measures
The Prosecutor v. Callixte Mbarushimana
On 30 March 2011, the Defence counsel filed its first
request for interim release to the accused’s French
residence. 2226 The Pre-Trial Chamber requested
observations from the Prosecution and from the
French and Dutch Governments. Specifically, the French
authorities were to address whether there would be
any legal impediment to Mbarushimana’s return to
French territory if his interim release was granted, and
whether the French authorities would be in a position
to impose one or more of the conditions set out in
Rule 119 should the Chamber order Mbarushimana’s
conditional release. 2227 The Prosecution responded
that the interim release should be rejected as: (i) the
conditions justifying Mbarushimana’s detention
under Article 58(1) were still in effect; and (ii) there
had been no unreasonable delay on the part of the
Prosecution and the accused had not been detained
for an unreasonable period within the terms of Article
60(4). 2228
On 19 May 2011, Pre-Trial Chamber I rejected the
Defence request for interim release. 2229 The Chamber
noted the presumption of innocence and the
requirement under international human rights law
that deprivation of liberty should be the exception and
not the rule, and repeated its finding that ‘pre-trial
detention shall only be resorted to when the Pre-Trial
Chamber is satisfied that the conditions set forth in
Article 58(1) of the Statute are met’. 2230 Following
previous Appeals Chamber jurisprudence, the
Chamber noted that the gravity of the crimes charged
and related severity of the threatened sentence are
legitimate factors to assess the risk that an accused
person may abscond, as are past and present political
position, international contacts and financial
resources. An expressed willingness to cooperate with
the Court is not sufficient in and of itself to justify
interim release.
In relation to the first requirement of Article 58(1), the
Chamber noted that the severity of Mbarushimana’s
alleged crimes and the resulting sentence rendered
him more likely to abscond. The Chamber was not
satisfied that Mbarushimana’s family and professional
links to France were a sufficient guarantee that he
would remain in France if released, and that due to
the lack of travel restrictions in the Schengen area,
his release to France would make it easier for him to
flee. The Chamber also noted the advanced stage of
the disclosure process in the proceedings prior to the
2226 ICC-01/04-01/10-86.
2227 ICC-01/04-01/10-89.
2228 ICC-01/04-01/10-101.
2229 ICC-01/04-01/10-163.
2230 ICC-01/04-01/10-163, para 33.
confirmation of charges hearing, posing potential
security concerns to the victims and witnesses whose
identify was disclosed. It concluded that the continued
detention of Mbarushimana was necessary to ensure
his appearance at trial.
Finally, the Chamber also held that the risk of
Mbarushimana continuing to participate in the
commission of crimes within the jurisdiction of the
Court and detailed in the Arrest Warrant ‘by organising
and conducting an international campaign through
media channels’ continued to exist, particularly in light
of the accused’s information technology experience
and ability to gain phone and internet access in ways
which could not be easily monitored or controlled.
The Defence filed for leave to appeal the Pre-Trial
Chamber’s decision, arguing that the Chamber had
failed to give the correct weight or interpretation
to the evidence before it relating to the grounds
for continued detention under Article 58(1)(b). 2231
Leave to appeal was granted and proceedings to
secure the accused’s interim release then began
before the Appeals Chamber. On 14 July 2011, the
Appeals Chamber rejected the Defence appeal. 2232 It
emphasised at the outset that it would not substitute
its own decision for that of the Pre-Trial Chamber and
would defer to the Pre-Trial Chamber’s findings unless
they were clearly erroneous. The Appeals Chamber
found that the Defence had, at most, identified a
disagreement between itself and the Pre-Trial Chamber
regarding the correct weight to give to various factors,
including the likelihood of Mbarushimana absconding,
but had not identified any clear error in the impugned
decision. It found that the Chamber had meticulously
addressed each of the Defence arguments in its
decision. The Appeals Chamber reiterated that the test
was not whether a Chamber could have reached other
conclusions; the test was whether any reasonable
Chamber could have reached the conclusions that it
did based on the available evidence.
The Appeals Chamber upheld the Pre-Trial Chamber’s
findings in relation to each of the grounds for
continued detention under Article 58(1)(b), namely to
ensure the accused’s appearance at trial, to prevent the
obstruction or endangerment of investigations, and
to prevent the continued commission of crimes within
the jurisdiction of the Court. The Appeals Chamber
concluded that, in relation to assessing the necessity
of continued detention to ensure no continued or
further commission of crimes, the determinative factor
was the possibility, not the inevitability, of future
occurrence.
2231 ICC-01/04-01/10-170.
2232 ICC-01/04-01/10-283.
336