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No. ICC-01/05-01/13 8 January 2014 Official Court Translation Original ICC-01/05-01/13-71-tENG 20-01-2014 1/21 NM PT Original: French No.: ICC-01/05-01/13 Date: 8 January 2014 PRE-TRIAL CHAMBER II Before: Judge Cuno Tarfusser, Single Judge SITUATION IN THE CENTRAL AFRICAN REPUBLIC IN THE CASE OF THE PROSECUTOR v. JEAN-PIERRE BEMBA GOMBO, AIMÉ KILOLO MUSAMBA, JEAN-JACQUES MANGENDA KABONGO, FIDÈLE BABALA WANDU AND NARCISSE ARIDO Public Document Application for release Source: Counsel for the Defence of Jean-Jacques Mangenda Kabongo No. ICC-01/05-01/13 1/21 8 January 2014 Official Court Translation ICC-01/05-01/13-71-tENG 20-01-2014 2/21 NM PT Document to be notified in accordance with regulation 31 of the Regulations of the Court to: Office of the Prosecutor Counsel for Jean-Jacques Mangenda Fatou Bensouda Kabongo James Stewart Jean Flamme Counsel for Jean-Pierre Bemba Gombo Nicholas Kaufman Counsel for Aimé Kilolo Musamba Jean-Pierre Kilenda Kakengi Basila Counsel for Fidèle Babala Wandu Prof Jean-Pierre Fofé Djofia Malewa Legal Representatives of Victims Legal Representatives of Applicants Legal Representatives of Victims Legal Representatives of Applicants Unrepresented Victims Unrepresented Applicants for Participation/Reparations Office of Public Counsel for Victims Office of Public Counsel for the Defence Xavier-Jean Keita States’ Representatives Amicus Curiae REGISTRY Registrar Defence Support Section Herman von Hebel Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section No. ICC-01/05-01/13 2/21 8 January 2014 Official Court Translation ICC-01/05-01/13-71-tENG 20-01-2014 3/21 NM PT 1. Background 1. Mr Jean-Jacques Mangenda Kabongo was arrested in The Hague by the Dutch authorities on 23 November 2013 at the request of the International Criminal Court, in execution of the 20 November 2013 warrant of arrest specifically. He was transferred to the detention centre in Scheveningen on 3 December 2013 and the Single Judge held a first appearance hearing on 5 December 2013. 2. Merits 2.1 Main submission: unlawfulness and nullity of the 20 November 2013 warrant of arrest; unlawful detention; immediate release 3. Article 58(3)(c) of the Rome Statute mandates that the warrant of arrest contain inter alia “[a] concise statement of the facts which are alleged to constitute those crimes”. In respect of a request for provisional arrest, article 92(2)(b) of the same Statute prescribes a statement of the facts alleged to constitute those crimes, “including, where possible, the date and location of the crime”. The Prosecutor has not established that it was impossible for her to specify the locations and dates of the alleged crimes. The condition accords with article 6(3) of the European Convention on Human Rights (ECHR): Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; Hence the “facts” cannot be stated in vague terms. The suspect must be privy to the “facts” to which the charges pertain for the purposes of his defence. This corresponds to “in detail” in the European Convention Human Rights. 3. This does not hold true for the warrant for the Applicant’s arrest. The warrant contains only charges, not facts. The “narrative’’ of the “facts” is confined to restating the charges: Presentation and filing of false or forged documents (which documents?); No. ICC-01/05-01/13 3/21 8 January 2014 Official Court Translation ICC-01/05-01/13-71-tENG 20-01-2014 4/21 NM PT “Coaching” (how?) of “witnesses” (whom?) to give “false” testimony; “Money transfers” (in what amounts?) to “several” Defence witnesses (to whom and when?). The “narrative” merely ‘notes’ a “criminal scheme”, allegedly headed by Mr Jean- Pierre Bemba. As regards the Applicant, the Single Judge states himself to be “satisfied” that there are reasonable grounds to believe that he assists Jean-Pierre Bemba and Aimé Kilolo in the furtherance of the criminal scheme since he “frequently” “appears to receive” money transfers via Western Union, particularly when Defence witnesses appear in court, because he “works” very closely with Mr Aimé Kilolo in respect of the coaching of witnesses and the devising of instructions to be issued to them; and he takes part in “certain” privileged conference calls with Jean-Pierre Bemba and Fidèle Babala. 4. Such a nebulous “narrative” precludes discernment of the “facts” referred to in article 58(3)(c). No mention is made of any date, location, precise amount or specific witness. What is more, in the 20 November 2013 warrant of arrest the Single Judge was compelled to note the “the lack of concision” which “marks the Application” and the “decision to articulate the counts in generic terms”.1 The Single Judge’s remark that “a statement of the necessary temporal and geographic circumstances in which the crimes were allegedly committed would have been preferable, even at this early juncture” is contradictory in that “necessary” statements cannot be “preferable”. As such, the warrant of arrest is contradictory in that it enumerates the essential conditions which the statement of the facts must satisfy, yet countenances its absence. 1 ICC-01/05-01/13-1-Red2-tENG, para. 11. No. ICC-01/05-01/13 4/21 8 January 2014 Official Court Translation ICC-01/05-01/13-71-tENG 20-01-2014 5/21 NM PT The statement of the facts is a formal and substantive condition for a warrant of arrest which, furthermore, affects a suspect’s fundamental rights (see supra). Failure to meet such conditions cannot be concealed by the evidence, of which the Applicant, in any event, remains unapprised. Yet, this is what the Single Judge does, as explained below. It is apparent that after over one month of detention, the Applicant is not in a position to ascertain the factual basis for his detention and is therefore unable to mount his defence. A warrant of arrest must set out the factual circumstances on which it rests.2 5. In issuing the warrant of arrest, the Judge cannot refer to evidentiary material to compensate for the absence of the relevant particulars, since this is a formal (and substantive) requirement. However, this is what the Single Judge does.3 Indeed the Single Judge considers himself “… able to navigate the body of evidence tendered by the Prosecutor, relying also on Independent Counsel’s work”4 and proceeds with general references to the evidence and the work of independent counsel, which purportedly “support[s]” the Prosecutor’s claims.5 A general reference to evidence cannot cure the aforementioned nullity of the warrant of arrest. From such reference, it is further apparent that the Prosecutor ought to be able to set out the facts in detail (“objective […] information and details”) but did not. From this is clear, all the more so, that the warrant of arrest is unlawful and null. 2 Chris Van den Wyngaert, Strafrecht en strafprocesrecht in hoofdlijnen, Maklu, p. 1089. 3 ICC-01/05-01/13-1-Red2-tENG, pp. 8, 9, 16. 4 ICC-01/05-01/13-1-Red2-tENG, para. 11. 5 “Numerous, objective, specific and detailed items of evidence were tendered in relation to each category of alleged conduct or each person whose arrest the Prosecutor seeks. The majority of material evidence appended to the Application consists of tables summarising money transfers effected through international services, particularly Western Union and Express Union, telephone call records, transcripts, translations and summaries of recorded communications, text messages (“SMS”), witness statements and e-mails. Furthermore, Independent Counsel, too, has furnished a wealth of material to support the Prosecutor’s claims. In short, the record contains at this stage a considerable and indeed quite remarkable quantity of items of evidence which furnish objective and incriminating information and details pertaining directly and specifically to the Prosecutor’s factual allegations.” ICC-01/05-01/13-1-Red2-tENG, para. 12. No. ICC-01/05-01/13 5/21 8 January 2014 Official Court Translation ICC-01/05-01/13-71-tENG 20-01-2014 6/21 NM PT 6. It is null in a further respect. The Single Judge makes several references to the work of “Independent Counsel” to support his being his satisfied as regards the issuance of the warrant of arrest. Accordingly, it appears that “Independent Counsel” is performing investigative work in parallel with the Prosecutor. However, no instrument provides for the intervention of any “independent counsel”. The regime of the Rome Statute vests powers of investigation solely in the Court’s Prosecutor, who is duty-bound to investigate incriminating and exonerating circumstances equally.6 The Prosecutor cannot delegate her powers to any other entity whatsoever. The Applicant never consented to the intervention of any such “independent counsel”, of whose identity, mission, powers and qualifications he is unapprised. Moreover, no such procedure concerning this matter exists. Hence we know not the rules which bind such “Independent Counsel” in discharge of his “mission”, which, too, remains unknown. The Defence must therefore point out that the warrant of arrest is at least partially (see supra) based on the investigations of a person who has no legal or judicial mandate. The right to liberty is the rule and no one shall be deprived of his liberty save in accordance with a procedure prescribed by law.7 8 It emerges therefrom that it is not for the judiciary to create extrajudicial organs which may investigate with a view to the arrest of a person. In that regard, the warrant of arrest, with its explicit and categorical references to reports by an “independent counsel” is therefore unlawful and null.
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