ICC Releases Suspects to Avoid Unreasonably Lengthy Pre-Trial Detention

by Léa Kulinowski

Aimé Kilolo, Jean-Jacques Mangenda and Jean-Pierre Bemba

Aimé Kilolo, Jean-Jacques Mangenda and Jean-Pierre Bemba

On 21 October 2014, Pre-Trial Chamber II of the International Criminal Court ordered the immediate release of four out of the five suspects in the case of Prosecutor v. Bemba, Kilolo, Mangenda, Babala and Arido. Mr. Bemba, who has been held in detention since July 2008 as a result of charges of war crimes and crimes against humanity, remains detained.

The suspects are charged with offences against the administration of justice under Article 70 of the Statute – the first of its kind before the ICC – including giving false testimony, knowingly presenting false/forged evidence and corruptly influencing witnesses. The penalty for these offences goes from a fine to a maximum of five years of imprisonment.

When granting the interim release, the Single Judge emphasised the protection against unreasonable detention as per Article 60 (4) of the Statute and noted the advanced stage of the proceedings as well as the various delays, holding that “the reasonableness of the duration of the detention has to be balanced inter alia against the statutory penalties applicable to the offences at stake in these proceedings and that, accordingly, the further extension of the period of the pre-trial detention would result in making its duration disproportionate”. Even though the duration of the suspects’ detention was not due to the Prosecutor’s inexcusable delay, the Single Judge found that the Pre-Trial Chamber was under an independent obligation to ensure that that a person is not unreasonably detained prior to trial under Article 60 (4) of the Statute.

The Single Judge also pointed out to the documentary nature of the relevant evidence, stating that it reduced the risks that the proceedings be obstructed or endangered, or that the alleged offences be continued.

Noting the suspects’ commitment to appear for trial, the Single Judge ordered their release without conditions.

It is the very first time that the Court decides it on the basis of the length of the pre-trial detention, and the second time that interim release is granted. The first case was that of Mr. Bemba, but it was overturned on appeal.

The Prosecution has already indicated its intention to file an appeal, and requested for its appeal to be given suspensive effect pursuant to Article 82 (3) of the Statute and Rule 156 (5) of the Rules of Procedure of evidence. However, the Appeals Chamber has rejected its request for suspensive effect. Balancing the Prosecution’s interest in ensuring that the purpose of its appeal is not potentially defeated by the immediate implementation of the Pre-Trial Chamber II’s decision with the interest of the four suspects to be released immediately, and taking into account that Article 70 offences carry a maximum penalty of five years imprisonment as well as the fact that they have already spent several months in pre-trial detention, the Appeals Chamber decided not to grant suspensive effect.

The Prosecution’s appeal is due next Tuesday.

The suspects, other than Mr. Bemba, had been detained since late November 2013. The Pre-Trial Chamber’s decision confirming or declining the charges is expected to be rendered early November 2014.