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ICC-02/11-01/15 Date: 15 January 2019 TRIAL

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ICC-02/11-01/15 Date: 15 January 2019 TRIAL ICC-02/11-01/15-1235 15-01-2019 1/20 EK T Original: English No.: ICC-02/11-01/15 Date: 15 January 2019 TRIAL CHAMBER I Before: Judge Cuno Tarfusser, Presiding Judge Judge Olga Herrera Carbuccia Judge Geoffrey Henderson SITUATION IN THE REPUBLIC OF CÔTE D'IVOIRE IN THE CASE OF THE PROSECUTOR v. LAURENT GBAGBO and CHARLES BLÉ GOUDÉ PUBLIC Urgent Prosecution’s request pursuant to article 81(3)(c)(i) of the Statute Source: Office of the Prosecutor No. ICC-02/11-01/15 1/20 15 January 2019 PURL: http://www.legal-tools.org/doc/ad9c5a/ ICC-02/11-01/15-1235 15-01-2019 2/20 EK T Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for Mr Laurent Gbagbo Ms Fatou Bensouda Mr Emmanuel Altit Mr James Stewart Ms Agathe Bahi Baroan Mr Eric MacDonald Counsel for Mr Charles Blé Goudé Mr Geert-Jan Alexander Knoops Mr Claver N’dry Legal Representatives of the Victims Legal Representatives of the Applicants Ms Paolina Massidda Unrepresented Victims Unrepresented Applicants for Participation/Reparation The Office of Public Counsel for The Office of Public Counsel for the Victims Defence Ms Paolina Massidda States’ Representatives Amicus Curiae REGISTRY Registrar Counsel Support Section Mr Peter Lewis Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section No. ICC-02/11-01/15 2/20 15 January 2019 PURL: http://www.legal-tools.org/doc/ad9c5a/ ICC-02/11-01/15-1235 15-01-2019 3/20 EK T Introduction 1. The Prosecution respectfully requests that the Chamber impose conditions on the Accused’s release pursuant to article 81(3)(c)(i) of the Statute.1 The Prosecution, upon a preliminary assessment of the Majority of the Trial Chamber I’s announcement to acquit the Accused (“Acquittals”),2 has determined that it intends to appeal the full and detailed reasoned Decision (“Decision”) following the Acquittals.3 The Prosecution’s decision is informed, among other factors, by Judge Herrera Carbuccia’s dissenting opinion.4 2. Even if at this stage the Majority of the Trial Chamber may not have effectively issued its Decision pursuant to article 74, since the Majority has decided not to provide reasons despite the requirements of article 74(5),5 the Prosecution has no choice but to already now announce its intention to file a notice of appeal under article 81(1)(a) against the Decision, once the reasons become known.6 This is to preserve the procedural right afforded to the Prosecution under article 81(3)(c)(i) to request the detention of the acquitted persons pending appeal. 3. The Prosecution submits that pursuant to article 81(3)(c)(i), there are exceptional circumstances for maintaining both Accused’s detention pending appeal. There is a concrete risk that the Accused will not appear for the continuation of the trial if the Prosecution’s appeal against the Decision is successful. In addition, the 1 The Prosecution notes that, while article 81(3)(c) of the Statute refers to “the accused” (“In case of an acquittal, the accused shall be released immediately, subject to the following”), subparagraph (i) instead refers to “the person” (“Under exceptional circumstances […] the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal”). For ease of reference, the Prosecution in this submission refers to “the Accused” to mean Laurent Gbagbo and Charles Blé Goudé. 2 ICC-02/11-01/11-T-323-ENG-ET. 3 See ICC-02/11-01/11-T-323-ENG-ET, p. 3. 4 ICC-02/11-01/11-1234 (“Dissenting Opinion”). 5 Dissenting Opinion, paras. 11-26. 6 Pursuant to rule 150(1) of the Rules of Procedure and Evidence, the Prosecution will file its notice of appeal against the Decision “no later than 30 days from the date on which the party filing the appeal is notified of the decision…”. As held by Judge Herrera Carbuccia, the Prosecution will not be able to comply with the formal requirements of a notice of appeal under regulation 57 without being provided with a “fully reasoned decision” Dissenting Opinion, para. 31. In the Acquittals, Judge Tarfusser also indicated that the deadlines for appeal would run from the notification of the full reasoned decision. No. ICC-02/11-01/15 3/20 15 January 2019 PURL: http://www.legal-tools.org/doc/ad9c5a/ ICC-02/11-01/15-1235 15-01-2019 4/20 EK T offences charged in this case are very serious. There is also a probability that the Prosecution will succeed on appeal. However, the Prosecution would not oppose release if the flight risk can be mitigated by imposing a series of conditions in relation to the release of the Accused, including that they be released to a State Party to the Rome Statute other than Côte d’Ivoire. Conditions should also be imposed to preserve the integrity of the continued proceedings. 4. Accordingly, subject to identifying a State that is willing and able to enforce the conditions imposed by the Chamber on the Accused’s release, it is submitted that the Chamber may order the conditional release of the Accused pending appeal. 5. If the Chamber denies this application, the Chamber should stay the Accused’s unconditional release until the Appeals Chamber decides on the suspensive effect of any appeal under article 81(3)(c)(ii) against the Chamber’s decision to deny this application.7 Procedural Background 6. Mr Gbagbo has been detained by the Court since 30 November 2011.8 Mr Blé Goudé since 22 March 2014.9 The trial against them began on 28 January 2016.10 The last witness called by the Prosecution testified in court on 19 January 2018.11 On 14 February 2018, the Defence for Mr Gbagbo filed his latest written request for interim release,12 which the Chamber denied by Majority on 20 April 2018.13 7 The Appeals Chamber has held that it may order that an appeal under article 81(3)(c)(ii) has suspensive effect pursuant to article 82(3) and rule 156(5). This would have the effect that the person “be[…] kept in detention pending the outcome of the Prosecutor’s appeal pursuant to article 81(3)(c)(ii)”: ICC-01/04-02/12-12 OA, paras. 15, 17. 8 See ICC-02/11-01/11-656-Red, para. 3. 9 See ICC-02/11-02/11-186, para. 4. 10 ICC-02/11-01/15-T-9-ENG-ET. 11 ICC-02/11-01/15-T-220-Red-ENG-CT. 12 See ICC-02/11-01/15-1130-Red. 13 See ICC-02/11-01/15-1156-Red. No. ICC-02/11-01/15 4/20 15 January 2019 PURL: http://www.legal-tools.org/doc/ad9c5a/ ICC-02/11-01/15-1235 15-01-2019 5/20 EK T 7. On 19 March 2018, upon invitation by the Chamber in its 9 February 2018 Order on the further Conduct of Proceedings,14 the Prosecution filed a Mid-Trial Brief.15 The Defence for each Accused filed observations in relation to it and the continuation of trial proceedings on 23 April 2018.16 Following the Chamber’s Second Order on the further Conduct of Proceedings issued on 4 June 2018,17 the Defence for each Accused filed their motions seeking a judgment of acquittal on 23 July 2018.18 The Prosecution and the LRV responded on 10 September 2018.19 Hearings on oral submissions in relation to the Defence motions seeking a judgment of acquittal were held on 1 to 3 October and 12 to 22 November 2018. 8. On 10 December 2018, the Chamber by Majority decided to proprio motu review the basis for the continued detention of the Accused,20 and convened a hearing for that purpose. The hearing took place in open session on 13 December 2018 with submissions from the parties, participants and Registry representatives.21 During that hearing the Defence for both Accused requested that they be released, with or without conditions.22 9. Today, on 15 January 2019,23 the Chamber by Majority orally granted the Defence motions for judgment of acquittal, indicating that it would provide its full and detailed reasoned decision as soon as possible, and deciding that the deadlines for appeal would run from the notification of the full reasoned decision. The Chamber by Majority also ordered the immediate release of both Accused pursuant to article 81(3)(c) of the Statute subject to any request by the Prosecution under article 81(3)(c)(i). It found that the Accused’s pending requests for 14 ICC-02/11-01/15-1124. 15 ICC-02/11-01/15-1136. 16 ICC-02/11-01/15-1157-Conf; ICC-02/11-01/15-1158-Conf. 17 ICC-02/11-01/15-1174. 18 ICC-02/11-01/15-1198; ICC-02/11-01/15-1199. 19 ICC-02/11-01/15-1207; ICC-02/11-01/15-1206-Conf. 20 ICC-02/11-01/15-1229, para. 10. 21 See ICC-02/11-01/15-T-231-CONF-ENG-ET and ICC-02/11-01/15-T-231-CONF-FRA-ET. 22 ICC-02/11-01/15-T-231-CONF-FRA-ET, pp. 28-47, especially pp. 45-47 (private session) and ICC-02/11- 01/15-T-231-CONF-ENG-ET, pp. 47-65, especially pp. 62-63 (private session), 64-65. 23 ICC-02/11-01/15-T-232-ENG-T-ET.
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