court: icc

doctype: appeal-interlocutory

identifier: ICC-01/05-01/13 (Judgment on the appeal of Mr Aime Kilolo Musamba against the decision of Pre-Trial Chamber II of 14 March 2014 entitled "Decision on the 'Demande de mise en liberte provisoire de Maitre Aime Kilolo Musamba'")

caseName: The Prosecutor v. Jean-Pierre Bemba Gombo, Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido

chamber: Appeals Chamber

decisionType: appeal-interlocutory

publisher: International Criminal Court

title: Judgment on the appeal of Mr Aime Kilolo Musamba against the decision of Pre-Trial Chamber II of 14 March 2014 entitled "Decision on the 'Demande de mise en liberte provisoire de Maitre Aime Kilolo Musamba'"

text: the Statute

text: the Statute, article 19

text: the Statute, article 21

text: the Statute, article 5

text: the Statute, article 58

text: the Statute, article 60

text: the Statute, article 61

text: the Statute, article 67

text: the Statute, article 70

text: the Statute, article 82

text: Cour

type: stycke

text: Periale /!®~I

text: Internationale ~ ~

text: ---------- ~ If ----------

text: International ~~ Criminal Court

text: Original: English No. ICC-Oll05-01l13 OA 2 Date: 11 July 2014

text: THE APPEALS CHAMBER

text: Before: Judge Sanji Mmasenono Monageng, Presiding Judge Judge Sang-Hyun Song Judge Akua Kuenyehia Judge Erkki Kourula Judge Anita Usacka

text: SITUATION IN THE CENTRAL AFRICAN REPUBLIC

text: IN THE CASE OF THE PROSECUTOR v. JEAN-PIERRE BEMBA GOMBO, AlME KILOLO MUSAMBA, JEAN-JACQUES MANGENDA KABONGO, FIDELE BABALA WANDU AND NARCISSE ARlDO

text: Public document Judgment on the appeal of Mr Aime Kilolo Musamba against the decision of Pre-Trial Chamber II of 14 March 2014 entitled "Decision on the 'Demande de mise en liberte provisoire de Maitre Aime Kilolo Musamba'"

text: No: ICC-01l05-0l/13 OA 2 1146

text: Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to:

text: The Office of the Prosecutor Counsel for the Defence

text: Ms Fatou Bensouda, Prosecutor Mr Ghislain M. Mabanga Ms Helen Brady

text: REGISTRY

text: Registrar

text: Mr Herman von Hebel

text: No: ICC-Ol105-01l13 OA 2 2/46

text: a

text: The Appeals Chamber of the International Criminal Court, In the appeal of Mr Aime Kilolo Musamba against the decision of Pre-Trial Chamber II entitled "Decision on the 'Demande de mise en Iiberte provisoire de Maitre Aime Kilolo Musamba" of 14 March 2014 (ICC-01l05-01l13-259),

text: After deliberation,

text: By majority, Judge Erkki Kourula and Judge Anita Usacka dissenting,

text: Delivers the following

text: JUDGMENT

text: The "Decision on the 'Demande de mise en liberte provisoire de Maitre Aime Kilolo Musamba" is confirmed. The appeal is dismissed.

text: REASONS

text: I. KEY FINDINGS

text: The Appeals Chamber emphasises that offences under

text: article 70

text: of

text: the Statute

text: , while certainly serious in nature, are by no means considered to be as grave as the core crimes under

text: article 5

text: of

text: the Statute

text: , being genocide, crimes against humanity, war crimes, and the crime of aggression, which are described in that provision to be "the most serious crimes of concern to the international community as a whole".

text: The Appeals Chamber considers that any decision on whether a person is detained pending his or her trial at this Court ought to be made based on the specific circumstances of the case, as relevant to an assessment of whether or not a suspect is likely to appear before the Court. Personal circumstances of the suspect such as the suspect's education, professional or social status may be relevant to assessing under

text: article 58

text: (1) (b) (i) of

text: the Statute

text: whether or not a suspect will appear before the Court.

text: No: ICC-Ol105-01l13 OA 2 3/46

text: II. PROCEDURAL HISTORY

text: A. Proceedings before the Pre-Trial Chamber

text: On 19 November 2013, the Prosecutor filed the "Prosecution's Application for Warrant of Arrest") (hereinafter: "Application for Warrants of Arrest"), seeking a warrant for the arrest of, inter alia, Mr Aime Kilolo Musamba (hereinafter: "Mr Kilolo,,).2

text: On 20 November 2013, Pre-Trial Chamber II (hereinafter: "Pre-Trial Chamber") issued the "Warrant of arrest for Jean-Pierre BEMBA GOMBO, Aime KILOLO MUSAMBA, Jean-Jacques MANGENDA KABONGO, Fidele BABALA WANDU and Narcisse ARIDO,,3 (hereinafter: "Arrest Warrant Decision").

text: Following his surrender to the Court, Mr Kilolo first appeared before the Pre- Trial Chamber on 27 November 2013.4 He has been in detention at the Court since.

text: On 16 December 2013, Mr Kilolo filed the "Demande de mise en Iiberte proviso ire de Maitre Aime Kilolo Musamba'" (hereinafter: "Application for Interim Release"), requesting, inter alia, that the Pre-Trial Chamber (i) convene a public hearing pursuant to rule 118 (3) of the Rules of Procedure and Evidence; and (ii) order Mr Kilolo's interim release; or, in the alternative (iii) order Mr Kilolo's conditional release pursuant to rule 119 of the Rules of Procedure and Evidence,"

text: On 17 December 2013, the Pre-Trial Chamber, its functions being exercised by Judge Cuno Tarfusser acting as single judge," rendered the "Decisions [sic] requesting observations on the 'Demande de mise en liberte proviso ire de Maitre Aime Kilolo

text: 1 ICC-01l05-67-US-Exp. A confidential version of the Prosecutor's application was filed on 27 November 2013 as ICC-Ol/05-01/13-19-Conf. 2 Application for Warrants of Arrest, para. l. 3 ICC-O1/05-0l/13-1-US-Exp-tENG. A redacted version of the French original warrant of arrest (ICC- 01/05-01/13-1-US-Exp) was filed on 28 November 2013 as ICC-Ol/05-01/13-1-Red2. 4 See "Decision setting the date for the first appearance of Jean-Pierre Bemba Gombo, Aime Kilolo Musamba and Fidele Babala, and on issues relating to the publicity of the proceedings", 25 November 2013, ICC-Ol/05-01113-11, p. 4; Transcript of 27 November 2013, ICC-Ol/05-01/13-T-I-ENG (CT WT), p. 4, lines 7-9, 15-19,25, p. 5, lines 1-3. 5 ICC-Ol/05-01/13-42, with 18 confidential annexes. See also "Addendum ala demande de mise en liberte provisoire de Maitre Airne Kilolo Musamba introduite le 16 decembre 2013 (ICC-Ol/05-01113- 42)", 7 January 2014, ICC-Ol/05-01/13-69, with confidential annexes 19 to 36. 6 Application for Interim Release, p. 20. 7 See Transcript of 27 November 2013, ICC-0l/05-0l/13-T-I-ENG (CT WT), p. 3, line 22, to p. 4, line 2. No: ICC-Ol/05-0l/13 OA 2 4/46

text: Musamba'?" (hereinafter: "Decision Requesting Observations") inviting submissions on Mr Kilolo's Application for Interim Release from the Prosecutor, the relevant authorities of the Kingdom of the Netherlands and the Kingdom of Belgium by Friday 3 January 2014.9 At the request of the Kingdom of Belgium, 10 the Pre-Trial Chamber subsequently extended this time limit to Monday 13 January 2014.11

text: On 14 January 2014, the Registrar filed the "Report of the Registry on the 'Decisions [sic] requesting observations on the 'Demande de mise en liberte provisoire de Maitre Aime Kilolo Musamba,,,,12 (hereinafter: "Registry Report"), containing the observations of both the Kingdom of the Netherlands" and the Kingdom of Belgium'" (hereinafter: "Belgian Authorities' Observations").

text: On 14 March 2014, the Pre-Trial Chamber rendered the "Decision on the 'Demande de mise en liberte proviso ire de Maitre Aime Kilolo Musamba":" (hereinafter: "Impugned Decision"), rejecting the Application for Interim Release."

text: B. Proceedings before the Appeals Chamber

text: On 16 March 2014, Mr Kilolo filed the "Acte d'appel contre la 'Decision on the 'Demande de mise en liberte proviso ire de Maftre Aime Kilolo Musamba' (ICC- 01105-01113-259),,17(hereinafter: ''Notice of Appeal"), submitting that the Appeals Chamber should reverse the Impugned Decision and order his interim release. I

text: On 24 March 2014, Mr Kilolo filed his "Brief in Support of the 'Acte d'appel contre la 'Decision on the 'Demande de mise en liberte proviso ire de Maitre Aime Kilolo Musamba' (ICC-OJ/05-0J/13-259)' (ICC-Ol/05-01/13-260)",19 (hereinafter: "Document in Support of the Appeal"), requesting the Appeals Chamber to dismiss

text: 8ICC-01l05-01l13-46. 9 Decision Requesting Observations, p. 4. 10See "Request by the Kingdom of Belgium for an extension of the deadline for submitting its observations on the 'Demande de mise en liberte provisoire de Maitre Aime Kilolo Musamba"', 20 December 2013, ICC-01/05-01/13-59. II"Decision granting an extension of time for submitting observations on 'Demande de mise en liberte provisoire de Maitre [sic] Aime Kilolo Musamba"', 20 December 2013, ICC-01/05-01113-60, p. 4. 12ICC-01/05-01113-95. 13See ICC-01l05-0 1/13-95-Conf-AnxS. 14 See ICC-01l05-01l13-95-Conf-Anx9. 15ICC-01l05-01l13-259. 16Impugned Decision, p. 21. 17Registered on 17 March 2014, ICC-01/05-01/13-260 eOA 2). 18Notice of Appeal, para. 4. 19ICC-0l/05-01l13-290 eOA 2). No: ICC-Ol105-0l/13 OA 2 5/46 the Impugned Decision or, in the alternative, remand the case to the Pre-Trial Chamber on points of law determined by the Appeals Chamber_2O

text: On 31 March 2014, the Prosecutor filed the "Prosecution's response to the Kilolo Defence's appeal against the Single Judge's Decision to continue his detention't" (hereinafter: "Response to the Document in Support of the Appeal"), requesting the Appeals Chamber to dismiss Mr Kilolo's appeal against the Impugned Decision.22

text: III. MERITS

text: Mr Kilolo presents three grounds of appeal. In his first ground of appeal, he submits that his continued detention is "a Manifest Injustice and a Blatant Violation of The Presumption of Innocence'v" Under his second ground of appeal, Mr Kilolo argues that the Pre-Trial Chamber erred by conflating

text: article 58

text: (1) (a) and

text: article 58

text: (1) (b) of

text: the Statute

text: ." Under his third ground of appeal, Mr Kilolo contends that the Pre-Trial Chamber erred in finding that the conditions under

text: article 58

text: (1) (b) of

text: the Statute

text: were met.25

text: Before turning to Mr Kilolo's grounds of appeal, the Appeals Chamber notes that he is charged with offences against the administration of justice, which fall under a special regime set out in

text: article 70

text: of

text: the Statute

text: and rules 162 to 169 of the Rules of Procedure and Evidence. Notwithstanding these specific provisions, rule 163 (1) of the Rules of Procedure and Evidence stipulates that "[u]nless otherwise provided in sub-rules 2 and 3, rule 162 and rules 164 to 169,

text: the Statute

text: and the Rules shall apply mutatis mutandis to the Court's investigation, prosecution and punishment of offences defined in article 70"_26Accordingly, the Appeals Chamber finds that articles 58 and

text: 20 Document in Support of the Appeal, para. 85. 21 ICC-01/05-01/13-302 (OA 2). 22 Response to the Document in Support of the Appeal, para. 20. 23 Document in Support of the Appeal, p. 3, paras 4-21. 24 Document in Support of the Appeal, paras 22-23. 25 Document in support of the Appeal, paras 24-44. 26 Rule 163 (2) of the Rules of Procedure and Evidence provides that "[t]he provisions of Part 2 [regarding the Court's jurisdiction, admissibility and applicable law], and any rules thereunder, shall not apply, with the exception of article 21". Rule 163 (3) of the Rules of Procedure and Evidence provides that "[t]he provisions of Part 10 [regarding enforcement], and any rules thereunder, shall not apply, with the exception of articles 103, 107,109 and Ill". Rule 165 (2) of the Rules of Procedure and Evidence pertaining to investigation, prosecution and trial stipulates that "[a]rticles 53 and 59, and any rules thereunder, shall not apply". With respect to the sanctions applicable, rule 166 (2) of the No: ICC-Ol/05-0l/13 OA 2 6/46

text: 60 of

text: the Statute

text: are applicable to offences charged under

text: article 70

text: of

text: the Statute

text: , and

text: thus to the present appeal.

text: A. Standard of review

text: In considering appeals in relation to decisions granting or denying interim

text: release, the Appeals Chamber has previously held that it "will not review the findings

text: of the Pre-Trial Chamber de novo, instead it will intervene in the findings of the Pre-

text: Trial Chamber only where clear errors of law, fact or procedure are shown to exist

text: and vitiate the Impugned Decision"."

text: The Appeals Chamber has explained its approach to factual errors in respect of

text: decisions on interim release as follows:

text: The Appeals Chamber has held that a Pre-Trial or Trial Chamber commits such an error if it misappreciates facts, disregards relevant facts or takes into account facts extraneous to the sub judice issues. In this regard, the Appeals Chamber has underlined that the appraisal of evidence lies, in the first place, with the relevant Chamber. In determining whether the Trial Chamber has misappreciated facts in a decision on interim release, the Appeals Chamber will "defer or accord a margin of appreciation both to the inferences [the Trial Chamber] drew from the available evidence and to the weight it accorded to the different factors militating for or against detention". Therefore, the Appeals Chamber "will interfere only in the case of a clear error, namely where it cannot discern how the Chamber's conclusion could have reasonably been reached from the evidence before it".28[Footnotes omitted.]

text: Rules of Procedure and Evidence provides that with the exception of article 77 (2) (b), the provisions of article 77 and related rules shall not apply. 27 Prosecutor v. Bosco Ntaganda, "Judgment on the appeal ofMr Bosco Ntaganda against the decision of the Pre-Trial-Chamber II of 18 November 2013 entitled 'Decision on the Defence's Application for Interim Release"', S March 2014, ICC-01l04-02/06-271-Red (OA) (hereinafter: "Ntaganda OA Judgment"), para. 29; Prosecutor v. Callixte Mbarushimana, "Judgment on the appeal of Mr Callixte Mbarushimana against the decision of Pre-Trial Chamber I of 19 May 2011 entitled 'Decision on the "Defence Request for Interim Release"''', 14 July 2011" ICC-Ol/04-01110-283 (OA) (hereinafter: "Mbarushimana OA Judgment"), para. 15, citing Prosecutor v. Jean-Pierre Bemba Gamba, "Judgment on the appeal of the Prosecutor against Pre-Trial Chamber II's 'Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa"', 2 December 2009, ICC-01l0S-01l08-631-Red (OA 2) (hereinafter: "Bemba OA 2 Judgment"), para. 62. 28 Ntaganda OA Judgment, para. 31, citing Prosecutor v. Jean-Pierre Bemba Gamba, "Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 6 January 2012 entitled 'Decision on the defence's 28 December 2011 "Requete de Mise en liberte provisoire de M. Jean-Pierre Bemba Gombo""', 5 March 2012, ICC-Ol/0S-0l/08-21S1- Red (OA 10), para. 16. See also Prosecutor v. Laurent Koudou Gbagbo, "Judgment on the appeal of Mr Laurent Koudou Gbagbo against the decision of Pre-Trial Chamber I of 13 July 2012 entitled 'Decision on the "Requete de la Defense demandant la mise en liberte provisoire du president Gbagbo""', 26 October 2012, ICC-02111- 01l11-278-Red (OA) (hereinafter: "Gbagbo OA Judgment"), para. 51.

text: No: ICC-Ol105-01l13 OA 2 7/46

text: In relation to alleged errors of law, the Appeals Chamber has previously held that it will not defer to the Trial (or Pre-Trial) Chamber's legal interpretation, but "will arrive at its own conclusions as to the appropriate law and determine whether or not the Trial Chamber misinterpreted the law".29

text: In the Mbarushimana OA Judgment, the Appeals Chamber noted that the appellant's mere disagreement with the conclusions that the Pre-Trial Chamber drew from the available facts or the weight it accorded to particular factors is not enough to establish a clear error."

text: It is also recalled that, in his or her document in support of appeal, "an appellant is obliged not only to set out an alleged error, but also to indicate, with sufficient precision, how this error would have materially affected the impugned decision"." Failure to do so may lead to the Appeals Chamber dismissing arguments in limine, without full consideration of their merits.

text: B. First ground of appeal

text: Under the first ground of appeal, Mr Kilolo raises three broad arguments in support of his claim that the Impugned Decision amounted to an injustice and violated the presumption of innocence: first, he submits that the Pre-Trial Chamber was biased against him (raising several arguments to support this claim);32 second, he submits that the Pre-Trial Chamber erred when holding that offences under

text: article 70

text: of

text: the Statute

text: are of "utmost gravity,,;33and finally, he submits that the Pre-Trial Chamber

text: 29 Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, "Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 12 September 2011 entitled 'Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation"', 17 February 2012,

text: (OA 2), para. 20 (in relation to errors of law generally). 30 Mbarushimana OA Judgment, paras 21, 31. 31 Ntaganda OA Judgment, para. 32; Prosecutor v. Jean-Pierre Bemba Gombo, "Corrigendum to Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 24 June 2010 entitled 'Decision on the Admissibility and Abuse of Process Challenges''', 19 October 2010, ICC-01l05-01l08-962-Corr (OA 3) (hereinafter: "Bemba OA 3 Judgment"), para. 102, citing Prosecutor v. Joseph Kony et al., "Judgment on the appeal of the Defence against the 'Decision on the admissibility of the case under

text: article 19

text: (1) of

text: the Statute

text: ' of 10 March 2009", 16 September 2009, ICC-02/04-0l/05-408 (OA 3) (hereinafter: "Kony et al. OA 3Judgment"), para. 48. 32 Document in Support of the Appeal, paras 5-13. 33 Document in Support of the Appeal, paras 14-15. No: ICC-Ol105-01l13 OA 2 8/46 disregarded that detention must be the exception and not the norm.i" These three arguments will be addressed in turn.

text: Relevant part of the Impugned Decision

text: In the Impugned Decision, the Pre-Trial Chamber stated that it agreed with the submissions of Mr Kilolo that detention is an exceptional measure, and as such, must be necessary and proportionate.f The Pre-Trial Chamber noted, however, that while it is exceptional, it shall "unfailingly apply, when the relevant statutory requirements are satisfied'v" It noted the Appeals Chamber's ruling that decisions taken under

text: article 60

text: (2) of

text: the Statute

text: are not discretionary, but rather, "[d]epending upon whether or not the conditions of

text: article 58

text: (1) of

text: the Statute

text: continue to be met, the detained person shall [... ] continue[ ... ] to be detained or shall be released".37

text: In its assessment of the conditions under

text: article 58

text: (1) (a) of

text: the Statute

text: , the Pre- Trial Chamber noted that, in its Arrest Warrant Decision, it found that there were reasonable grounds to believe that Mr Kilolo:

text: i) 'made payments to Defence witnesses with funds made available by the Accused'; ii) attempted to tender into the record of the case of The Prosecutor v. Jean-Pierre Bemba Gamba [hereinafter: "Bemba Case"] 'at least 14 documents which he knew to be false or forged'; iii) contacted several Defence witnesses in the [Bemba]Case, 'immediately before or after their appearance before the Trial Chamber, and, in some instances, during recesses between two phases of their in-court testimony'; iv) during such contact, 'explained to the witnesses which questions would be put to them and the responses they should give in court' .38 23. The Pre-Trial Chamber referred to the body of evidence it relied upon to conclude that reasonable grounds existed, notably the annexes to the Application for Warrants of Arrest," and the two reports submitted by the Independent Counsel (hereinafter: "Independent Counsel Reports") on 25 October 201340 and on

text: 34 Document in Support of the Appeal, paras 16-21. 3S Impugned Decision, para. 3. 36 Impugned Decision, para. 3. 37 Impugned Decision, para. 3, referring to Prosecutor v. Thomas Lubanga Dyilo, "Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled 'Decision sur la demande de mise en liberte provisoire de Thomas Lubanga Dyilo''', 13 February 2007, ICC- 01104-01106-824 (OA 7) (hereinafter: "Lubanga OA 7Judgment"), para. 134. 38 Impugned Decision, para. 6, referring to Arrest Warrant Decision, para. 16. 39 Impugned Decision, paras 7-9. 40 "Premier rapport du Conseil Independant (periode du 15 au 30 aout 2013)", ICC-Ol/05-64-Conf- Exp. A confidential redacted version of the report was filed on 16 December 2013 as ICC-01l05-64- Conf-Red. No: ICC-Ol105-01l13 OA 2 9/46

text: 14 November 201341 (hereinafter: "Report of 14 November 2013,,).42 The Pre-Trial Chamber noted that none of this material contained in the Application for Warrants of Arrest or in the Independent Counsel Reports was addressed by Mr Kilolo in his Application for Interim Release." Rather, Mr Kilolo declined to challenge the factual basis of the warrant of arrest but indicated his intention, in due course, to prove the contrary through Defence arguments."

text: The Pre-Trial Chamber noted that, "under these circumstances", it was still fully persuaded that, based on an "ex novo" assessment of these materials, reasonable grounds to believe continued to exist that Mr Kilolo committed the crimes alleged by the Prosecutor "and that, therefore, the requirements under

text: article 58

text: (1)(a) of

text: the Statute

text: continue to be satisfied"."

text: As to Mr Kilolo's request for a hearing under rule 118 (3) of the Rules of Procedure and Evidence, the Pre-Trial Chamber held that, due to the "abundance of the material available" to it, it would not be "necessary or appropriate to hold a hearing at this stage and for the purposes of the determination of [Mr] Kilolo's request for interim release".46 Accordingly, the Pre-Trial Chamber rejected Mr Kilolo's request."

text: The Pre-Trial Chamber also found that, in assessing the conditions underpinning

text: article 58

text: (1) (b) (i) of

text: the Statute

text: , "[p]ersonal circumstances of education, professional or social status are per se neutral and inconclusive in respect of the need to assess the existence of flight risks".48Relatedly, the Pre-Trial Chamber held that the fact that an individual has never before been charged or found guilty of offences against the administration of justice "does not as such impact on the evaluation of the

text: 41 "Deuxierne rapport du Conseil Independant (periode du 23 aoflt au 16 octobre 2013)", registered on 15 November 2013, ICC-Ol/0S-66-Conf-Exp. A confidential redacted version of the report was filed on 16 December 2013 as ICC-Ol/0S-66-Conf-Red. 42 Impugned Decision, paras 10-14. 43 Impugned Decision, para. 15. 44 Impugned Decision, para. 15, referring to Application for Interim Release, para. 15. 4S Impugned Decision, para. 16. 46 Impugned Decision, para. 47. 47 Impugned Decision, para. 47. 48 Impugned Decision, para. 23. No: ICC-Ol105-01l13 OA 2 10/46 risks associated with the specific conduct which has led to his or her arrest, in the presence of other elements suitable to substantiate the existence of those risks"."

text: In the course of assessing the risk ofMr Kilolo absconding under

text: article 58

text: (1) (b) (i) of

text: the Statute

text: , the Pre-Trial Chamber referred to its finding in the Arrest Warrant Decision that Mr Kilolo 'possessed identity documents which entitled him to travel freely, not only throughout the Schengen area, but also to non-States parties to Statute [sic], such as Cameroon, which are under no obligation to cooperate with the Court' .50The Pre-Trial Chamber also noted that "offences against the administration of justice are of the utmost gravity, even more so when proceedings relating to crimes as grave as those within the jurisdiction of the Court are at stake". 51It held that the commission of such offences is so serious as it not only disrupts the present case itself, but "undermine[s] public trust in the administration of justice and the judiciary", a factor that is exacerbated when committed by lawyers, which is the case for Mr Kilolo, whose "professional mission is to serve, rather than disrupt, justice".52

text: Mr Kilolo 's submissions before the Appeals Chamber

text: (a) Alleged bias ofthe Pre-Trial Chamber 28. Mr Kilolo submits under his first ground of appeal that the Pre-Trial Chamber's "Clear Bias Mutates the Presumption ofInnocence into a Presumption ofGuilt".53 He argues that, contrary to this, the presumption of innocence is enshrined in the

text: Rome Statute

text: , as well as in international human rights and international criminal law more generally, and that to countervail this principle and presume guilt "is an error of law amounting to a manifest injustice"."

text: First, Mr Kilolo argues that bias on the part of the Pre-Trial Chamber is evidenced by a number of factors, including the denial of his request for a hearing. 55 Mr Kilolo submits that, as per his right, he requested a public hearing pursuant to rule 118 (3) of the Rules of Procedure and Evidence to discuss the possibility of interim

text: 49 Impugned Decision, para. 23. 50 Impugned Decision, para. 20. 51 Impugned Decision, para. 23. 52 Impugned Decision, para. 23. 53 Document in Support of the Appeal, p. 4. 54 Document in Support of the Appeal, para. 4. 55 Document in Support of the Appeal, para. 5. No: ICC-Ol105-01l13 OA 2 11/46 release and any potential conditions thereto." He argues that he was prejudiced by the Pre-Trial Chamber's decision not to do so, as he was deprived of the opportunity to "have come to a mutual compromise and understanding as to the conditions" with the Belgian authorities of a potential conditional release to Belgium."

text: Second, Mr Kilolo argues that the language of the Pre-Trial Chamber evidences bias insofar as, at times, it references the commission of crimes by Mr Kilolo as opposed to the "alleged" commission of offences."

text: Third, Mr Kilolo argues that the Pre-Trial Chamber erred in refusing to take into real consideration any mitigating factors in terms of his personal circumstances (namely, education, professional or social status) as well as his lack of criminal record, and that dismissing these factors "without any real reason is to contravene judicial equity and presuppose guilt".59

text: Fourth, Mr Kilolo contends that the Impugned Decision lacks concrete and specific reasoning, despite the Pre-Trial Chamber's acknowledgment of the conditions of the Appeals Chamber that "[a]rtic1e 60(2) decisions on interim release must be accompanied by a full reasoning't." Mr Kilolo further avers that, in order to justify his detention, the Pre-Trial Chamber relied upon the material attached to the Application for Warrants of Arrest which constituted "highly tenuous and unsubstantiated evidence", thus demonstrating a prejudice amounting to a presumption of guilt on the part of the Pre-Trial Chamber." He argues that "it cannot be assumed - on the basis of an [a]rticle 58(1)(a) arrest warrant issued against Mr Kilolo more than four months ago - that reasonable grounds for detention continue to exist, and it was erroneous for the [Pre-Trial Chamber] to simply refer to the materials listed in the [Arrest Warrant Decision] as justification for continued detention".62In particular, Mr Kilolo contests the Impugned Decision's reference to evidence underpinning his contact with Defence

text: 56 Document in Support of the Appeal, para. 6. 57 Document in Support of the Appeal, para. 6. 58 Document in Support of the Appeal, paras 5, 7. See also Document in Support of the Appeal, paras 8, 41,42. 59 Document in Support of the Appeal, paras 5, 9, referring to Impugned Decision, para. 23. See also Document in Support of the Appeal, para. 45. 60 Document in Support of the Appeal, para. 10, referring to Impugned Decision, para. 4. See also Document in Support of the Appeal, para. 5. 6! Document in Support of the Appeal, paras 11-12. 62 Document in Support of the Appeal, para. 12 (emphasis in original). No: ICC-Ol/05-0l/13 OA 2 12/46 witnesses in the Bemba Case and his concomitant complaints regarding witnesses' statements, as well as Mr Kilolo's connection to purportedly forged documents.f

text: Fifth, Mr Kilolo argues that the Pre-Trial Chamber's conclusion that he may flee to Cameroon, despite the fact he "is a citizen of Belgium and was in possession only of Belgian identity and travel documents" evidences racial bias "on the basis of his skin colour" .64

text: (b) Alleged error regarding the gravity of the offences 34. Mr Kilolo argues that the Pre-Trial Chamber erroneously classified offences under

text: article 70

text: of

text: the Statute

text: as those of the "utmost gravity" when, pursuant to

text: article 5

text: of

text: the Statute

text: , crimes of that ilk are limited to genocide, crimes against humanity, war crimes and the crime of aggression as the "'most serious crimes of

text: concern to the international community as a whole",.65

text: (c) Alleged error regarding the principle of the exceptionality of detention 35. Mr Kilolo submits that, according to international law, and as affirmed by a decision on interim release of Pre-Trial Chamber I in the case of the Prosecutor v. Laurent Gbagbo,66detention ought to be the exception and not the rule, and therefore should "be used as a means of last resort''I" Mr KiIolo argues further that detention should only ever be ordered in a fully reasoned decision and on the basis of "concrete and specific evidence" in relation to both the detained person's "guilt"," as well as the conditions underpinning

text: article 58

text: (1) (b) of

text: the Statute

text: ." Further, such a decision should only be taken after consideration of "all relevant factors [... ] considered together"." Mr KiIolo argues that the Pre-Trial Chamber displayed a presumption in favour of Mr Kilolo's guilt by ignoring his "various personal undertakings,

text: 63 Document in Support of the Appeal, para. 11. 64 Document in Support of the Appeal, para. l3. See also Document in Support of the Appeal, para. 5. 65 Document in Support of the Appeal, paras 14-15 (emphasis in original). See also Document in Support of the Appeal, para. 45. The Appeals Chamber notes that this subsection appears to be the second limb of Mr Kilolo' s first ground of appeal, despite being designated as "(a)". 66 Document in Support of the Appeal, para. 16, referring to "Decision on the 'Requete de la Defense demandant la mise en liberte provisoire du president Gbagbo"', l3 July 2012,

text: BO- Red, para. 42. 67 Document in Support of the Appeal, para. 16 (emphasis in original). 68 Document in Support of the Appeal, para. 19 (emphasis in original omitted). 69 Document in Support of the Appeal, para. 17. 70 Document in Support of the Appeal, para. lB. No: ICC-Ol/05-0l/13 OA 2 13/46 professional endorsements, lack of criminal record and willingness to work with the various authorities to negotiate conditions of an interim release"."

text: Mr Kilolo also contends that, pursuant to

text: article 67

text: (1) (i) of

text: the Statute

text: , the Prosecutor bears the burden of proof in showing that the conditions set out in

text: article 58

text: (1) (b) of

text: the Statute

text: have been satisfled." Mr Kilolo notes two dissenting opinions in judgments of the Appeals Chamber that, in his view are critical of the shifting of the burden of proof onto the accused;" and avers that the phrasing "continue to be met [in

text: article 60

text: (2) of

text: the Statute

text: ]" indicates that any initial satisfaction of the conditions underpinning detention "does not necessarily continue in perpetuity't" Mr Kilolo argues further that, in the present case, the Pre-Trial Chamber wrongfully shifted the burden of proof onto the Defence by arguing that "the Defence's failure to address the material submitted by the Prosecutor fully persuades [it] as to the convincing nature of the materials".75

text: The Prosecutor'ssubmissionsbeforetheAppeals Chamber

text: (a) Alleged bias of the Pre-Trial Chamber 37. The Prosecutor submits that, overall, Mr Kilolo's first ground of appeal "faU[s] to identify a discernible error in the [Pre-Trial Chamber], s exercise of discretion and should be dismissed", because, inter alia, the Pre-Trial Chamber enunciated the "correct legal principles of the presumption of innocence and the exceptionality of detention", and noted that these do not preclude detention where the conditions of article 58 (1) (b) are satisfied."

text: The Prosecutor avers that the denial of Mr Kilolo's request for a hearing was hot arbitrarily decided by the Pre-Trial Chamber; rather the Pre-Trial Chamber

text: 71 Document in Support of the Appeal, para. 19. 72 Document in Support of the Appeal, para. 20. 73 Document in Support of the Appeal, para. 20, referring to Prosecutor v. Jean-Pierre Bemba Gamba, "Dissenting opinion of Judge Georghios M. Pikis", para. 24 in "Judgment on the appeal of Mr. Jean- Pierre Bemba Gombo against the decision of Pre-Trial Chamber III entitled 'Decision on application for interim release''', 16 December 2008, ICC-01l05-01/08-323 (OA) (hereinafter: "Bemba OA Judgment"); "Dissenting Opinion of Judge Anita Usacka", para. 22 in Gbagbo OA Judgment. 74 Document in Support of the Appeal, para. 20 (emphasis in original). 75 Document in Support of the Appeal, para. 21 (emphasis in original omitted), referring to Impugned Decision, para. 15 (footnote omitted). 76 Response to the Document in Support of the Appeal, para. 2. No: ICC-Ol105-01l13 OA 2 14/46 correctly used its discretion in finding that the information referred to in the Impugned Decision made it 'not necessary or appropriate to hold a hearing,.77

text: The Prosecutor also argues that Mr Kilolo misread the Impugned Decision in arguing that its language 'impl[ied] guilt', as it refers to "the conduct in which the [Pre-Trial Chamber] found reasonable grounds to believe he engaged" rather than his 'actual conduct'." She further avers that the Pre-Trial Chamber did not err when declining to consider Mr Kilolo's personal circumstances as 'mitigating' factors under

text: article 58

text: (1) (b) (i) of

text: the Statute

text: because, inter alia, the Pre-Trial Chamber "provided detailed reasons for why [it] discounted these factors"." The Prosecutor also notes that, in reviewing these findings, the Appeals Chamber ought to accord the Pre-Trial Chamber a "margin of appreciation" whereby it will only intervene "'where it cannot discern how the Chamber's conclusion could have reasonably been reached ",.80

text: In relation to Mr Kilolo's contention that the Impugned Decision is devoid of concrete and specific reasoning, the Prosecutor argues that Mr Kilolo merely disagrees with the Impugned Decision and does not "properly characterise any alleged error or clearly define the scope of his objection", and that regardless, the Impugned Decision indeed "provides detailed reasoning based on concrete evidence"." The Prosecutor also argues that Mr Kilolo's contention "resort to contesting generally the [Pre-Trial Chamber'S] [a]rticle 58(1)(a) findings is insufficient" to support a ground of appeal attacking the reasoning of the Impugned Decision.82

text: The Prosecutor further contends that Mr Kilolo's contention of racial bias is "hyperbolic" and "unfounded", given the lack of evidentiary support in respect of such a claim.83

text: 77Response to the Document in Support of the Appeal, para. 3. 78Response to the Document in Support of the Appeal, para. 4. 79Response to the Document in Support of the Appeal, para. 5. 80 Response to the Document in Support of the Appeal, para. 5. 81 Response to the Document in Support of the Appeal, para. 6. 82 Response to the Document in Support of the Appeal, para. 6. 83 Response to the Document in Support of the Appeal, para. 7. No: ICC-Ol/05-01l13 OA 2 15/46

text: (b) Alleged error regarding the gravity of the offences 42. In relation to Mr Kilolo's contention that the Pre-Trial Chamber erred in characterising offences under

text: article 70

text: of

text: the Statute

text: as crimes of utmost gravity, the Prosecutor avers that this finding was immaterial to the determination of the Appeals Chamber as the Pre-Trial Chamber did not rely on this finding when deciding to maintain his detention.84

text: (c) Alleged error regarding the principle of the exceptionality of detention 43. The Prosecutor argues that the allegation that the Pre-Trial Chamber violated the principle of the exceptionality of detention is not sustainable, as Mr Kilolo merely repeats his previous submissions and fails to demonstrate that the Pre-Trial Chamber erred in its exercise of discretion.f The Prosecutor avers that the Pre-Trial Chamber gave "adequate and detailed reasoning for not taking into account Kilolo's personal circumstances't'"

text: Regarding Mr Kilolo's submission that the Pre-Trial Chamber reversed the burden of proof, the Prosecutor alleges that Mr Kilolo misrepresents the Pre-Trial Chamber's reasoning as it "laid out the circumstances" leading to its conclusion, by first turning to the evidence, before proceeding to assess "whether any Defence argument undermined [its] conclusion", which the Prosecutor argues, is in accordance with

text: article 67

text: (1) (g) and (i) of

text: the Statute

text: Determination by the Appeals Chamber

text: (a) Alleged bias of the Pre-Trial Chamber 45. The Appeals Chamber notes that with the first set of submissions raised under the first ground of appeal, Mr Kilolo contends that the Pre-Trial Chamber was biased against him. In doing so, Mr Kilolo raises numerous arguments which appear to allege errors of a procedural or legal nature. Accordingly, the Appeals Chamber will consider Mr Kilolo's submissions in light of its applicable standard of review for such errors.

text: 84 Response to the Document in Support of the Appeal, para. 8. 85 Response to the Document in Support of the Appeal, para. 9. 86 Response to the Document in Support of the Appeal, para. 9. 87 Response to the Document in Support of the Appeal, para. 10. No: ICC-Ol/05-01l13 OA 2 16/46

text: With regard to Mr Kilolo's contention that the Pre-Trial Chamber erred in not holding a hearing pursuant to rule 118 (3) of the Rules of Procedure and Evidence." the Appeals Chamber recalls that the Pre-Trial Chamber found that "[i]n view [of] the abundance of the material available to [Mr Kilolo], a great amount of which has been referred to in [the Impugned Decision], makes it not necessary or appropriate to hold a hearing at this stage for the purposes of the determination of [Mr] Kilolo's request for interim release". 89

text: The Appeals Chamber notes that under rule 118 (3) of the Rules of Procedure and Evidence the Pre-Trial Chamber may hold a hearing, "at the request of the Prosecutor or the detained person or on its own initiative", but is not obliged to do so. The Pre-Trial Chamber's decision to decline the convening of a hearing was thus an exercise of its discretion on a procedural issue. In relation to procedural errors, the Appeals Chamber has considered, in the Kony et al. OA 3 Judgment, such errors to be those that occurred in the "proceedings leading up to" an impugned decision." In relation to discretionary decisions, the Appeals Chamber recalls that it "will not interfere with the Pre-Trial Chamber's exercise of discretion" merely because it "might have made a different ruling"." The Appeals Chamber's examination will be limited to establishing whether the Pre-Trial Chamber exercised its discretion incorrectly." In relation to the convening of hearings specifically, the Appeals Chamber has held that the decision to convene a hearing is discretionary rather than obligatory, and that the question on appeal is therefore limited to assessing whether or not failure to convene a hearing amounted to abuse of the Trial Chamber's discretion."

text: 88 Document in Support of the Appeal, para. 6. 89 Impugned Decision, para. 47. 90 See Kony et at. OA 3 Judgment, para. 46. See also Bemba OA 3 Judgment, para. 101, in which the Appeals Chamber qualified an alleged error that occurred in the "preliminary proceedings" prior to the rendering of an impugned decision as procedural. 91 Kony et al. OA 3 Judgment, para. 79. 92 See, e.g. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, "Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled 'Decision on the Motion of the Defence for Germian Katanga for a Declarartion on Unlawful Detention and Stay of Proceedings''', 12 July 2010, ICC-01l04-01/07-2259 (OA 10), para. 34. 93 Prosecutor v. Muthaura et al., "Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled 'Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to

text: Article 19

text: (2)(b) of

text: the Statute

text: "', 30 August 2011, ICC-01l09-021l1-274 (OA), para. 108. No: ICC-Ol105-01l13 OA 2 17/46

text: In light of this standard of review, the Appeals Chamber considers that Mr Kilolo has not demonstrated that the Pre-Trial Chamber abused its discretion when deciding not to convene a hearing. Mr Kilolo had the opportunity to present written submissions in support of his Application for Interim Release. Furthermore, his contention that a hearing would have provided an opportunity to reach a "mutual compromise and understandlng't" is unsubstantiated, speculative, and does not, in and of itself, disclose any error in the exercise of discretion. Accordingly, Mr Kilolo's argument in this regard is dismissed.

text: Mr Kilolo argues further that the language used in the Impugned Decision exhibited bias on the part of the Pre-Trial Chamber when it referenced "[his] actual commission of crimes as opposed to the alleged commission of ojJenses".95 As argued by the Prosecutor," the Appeals Chamber considers that the manner in which the Pre- Trial Chamber references Mr Kilolo's conduct must be understood in light of its analysis and eventual finding under

text: article 58

text: (1) (a) of

text: the Statute

text: that the evidence establishes "reasonable grounds to believe" that Mr Kilolo "committed the crimes alleged by the Prosecutor"." Thus all references to Mr Kilolo's "conduct" must be read in this context. This reading is reinforced by the Pre-Trial Chamber's five other references in the Impugned Decision to the term "alleged".98 The Appeals Chamber is therefore satisfied that the Pre-Trial Chamber did not exhibit bias in the Impugned Decision by using inappropriate language.

text: In relation to Mr Kilolo's argument that, when assessing the criteria to grant interim release, the Pre-Trial Chamber "refused to take into real consideration any mitigating factors", such as his personal circumstances." the Appeals Chamber notes that, apart from asserting that such an omission "contravene[s] judicial equity and presuppose[ s] guilt",100Mr Kilolo fails to substantiate how the alleged error amounts to bias in these circumstances. In the absence of such substantiation, the Appeals Chamber dismisses Mr Kilolo's argument. However, the Appeals Chamber will

text: 94 Document in Support of the Appeal, para. 6. 95 Document in Support of the Appeal, para. 7 (emphasis in original). 96 See Response to the Document in Support of the Appeal, para. 4. 97 See Impugned Decision, para. 16. 98 See Impugned Decision, paras 5, 31, 37,43. 99 Document in Support of the Appeal, para. 9. 100Document in Support of the Appeal, para. 9. No: ICC-Ol105-01l13 OA 2 18/46 consider the issue of personal circumstances'?' later in this judgment, insofar as it relates to Mr Kilolo' s third ground of appeal.

text: In relation to Mr Kilolo's argument on the lack of concrete and specific reasoning of the Impugned Decision, the Appeals Chamber recalls that it has previously determined, in the context of disclosure decisions, that insufficient reasoning may amount to an error of law:

text: The extent of the reasoning will depend on the circumstances of the case, but it is essential that it indicates with sufficient clarity the basis of the decision. Such reasoning will not necessarily require reciting each and every factor that was before the Pre-Trial Chamber to be individually set out, but it must identify which facts it found to be relevant in coming to its conclusion.l'" 52. The Appeals Chamber recalls that this issue was also considered by the Appeals Chamber in the context of reviewing a decision of interim release in the case of the Prosecutor v. Laurent Gbagbor"

text: The Appeals Chamber finds that, in the present case, Mr Kilolo has failed to establish that the Impugned Decision was insufficiently reasoned. Indeed, while Mr Kilolo raises the purported lack of reasoning of the Impugned Decision to demonstrate that the Pre-Trial Chamber was biased against him,104 the Appeals Chamber finds that he appears merely to be arguing against the compellability of the evidence relied upon by the Pre-Trial Chamber in finding "reasonable grounds to believe" he committed the crimes alleged, rather than the reasoning thereto.l'" Mr Kilolo therefore merely asserts the reasoning was insufficient without substantiating this claim further. Accordingly, Mr Kilolo's argument in relation to this issue is dismissed.

text: Turning to Mr Kilolo's argument that the Pre-Trial Chamber detained him, inter alia, in the "absence of any concrete evidence rendering detention suitable in this

text: 101 See Document in Support of the Appeal, para. 9. 102 Prosecutor v. Thomas Lubanga Dyilo, "Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled 'First Decision on the Prosecution Requests and Amended Requests for Redactions under Rule 81"', 14 December 2006, ICC-01l04-01/06-773 (OA 5), para.20. 103 "Judgment on the appeal of Mr Laurent Gbagbo against the decision of Pre-Trial Chamber I of 11 July 2013 entitled 'Third decision on the review of Laurent Gbabgo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: "', 29 October 2013, ICC-02/11-011l1-548-Red, paras 19-24. 104See Document in Support of the Appeal, para. 11. 105 See Document in Support of the Appeal, para. 12. No: ICC-Ol105-01l13 OA 2 19/46 case",106 the Appeals Chamber notes that, in concluding that reasonable grounds existed under

text: article 58

text: (1) (a) of

text: the Statute

text: , Mr Kilolo committed the crimes alleged by the Prosecutor, the Pre-Trial Chamber referenced in the Impugned Decision the specific evidence underpinning its findings under both counts in the Arrest Warrant Decision. Such evidence included the materials appended to the Application for Warrants of Arrest, as well as the Independent Counsel Reports.'?" The Appeals Chamber notes further that Mr Kilolo does not challenge this underlying material in his Application for Interim Release.!" however; he does seek to contest the "compelling" nature of this evidence on appeal.l'" In so doing, Mr Kilolo fails, however, to identify the relevant evidentiary standard the Pre-Trial Chamber ought to have met.

text: In this connection, the Appeals Chamber notes that the relevant standard underpinning

text: article 58

text: (1) (a) of

text: the Statute

text: is the least onerous of the progressively higher evidentiary thresholds required for confirmation of charges under

text: article 61

text: (7) of

text: the Statute

text: ("substantial grounds to believe" that the person committed each of the crimes charged), or for conviction under article 66 (3) (in which the Court must be convinced of the guilt of the accused "beyond reasonable doubt"). In terms of what "reasonable grounds to believe" specifically entails, the Appeals Chamber recalls its finding in the case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo ChuillO that:

text: The belief must be founded upon grounds such as to warrant its reasonableness. Suspicion simpliciter is not enough. Belief denotes, in this context, acceptance of a fact (footnote omitted). The facts placed before the Chamber must be cogent to the extent of creating a reasonable belief that the person committed the crimes.l!' 56. In the present case, while the Pre-Trial Chamber voiced its doubts in relation to the utility of reviewing anew whether "reasonable grounds to believe" continue to exist that Mr Kilolo committed the crimes for which he was charged, it stated that it

text: 106 Document in Support of the Appeal, para. 12. 107 Impugned Decision, para. 16. 108 See Application for Interim Release, para. 34. 109Document in Support of the Appeal, para. 11. . 110 "Judgment in the Appeal by Mathieu Ngudjolo Chui of27 March 2008 against the Decision of Pre- Trial Chamber I on the Application of the Appellant for Interim Release", 9 June 2008, ICC 01/04- 01/07-572 (OA 4) (hereinafter: "Ngudjolo OA 4 Judgment"). IIINgudjolo OA 4 Judgment, para. 18. No: ICC-Ol105-01l13 OA 2 20/46 would "nevertheless refer to some of the materials relied upon in issuing the warrant (as well as their contents), all of which have been reconsidered and assessed ex novo for the purposes of this decision" .112 The Appeals Chamber notes that these materials included:

text: a) translated excerpts of phone calls [sic] intercepts between Jean-Pierre Bemba [hereinafter: "Mr Bemba"] and Fidele Babala, where [Mr] Kilolo is mentioned in connection with money transfers requested by or made to him (and to Jean- Jacques Mangenda); b) tables containing details of amounts of money transferred to and by [Mr] Kilolo, including to Defence witnesses in the [Bemba] Case; c) fourteen documents received by [Mr] Kilolo from Narcisse Arido for the purposes of being tendered into evidence in the [Bemba] Case, the authenticity of which is explicitly disputed by witnesses. [Footnotes omitted.] I 13 57. Furthermore, the Pre-Trial Chamber referred specifically to materials submitted by the Prosecutor in relation to

text: article 70

text: (I) (a) of

text: the Statute

text: , including a witness statement in the Bemba Case challenging the authenticity of a number of documents,'!" as well as materials made available by the Prosecutor in relation to

text: article 70

text: (1) (c) of

text: the Statute

text: , purporting to show that Defence witnesses were contacted without authorisation during adjournments of their testimony, and that some amended their testimony. IIS

text: The Appeals Chamber notes that the Pre-Trial Chamber also referred to the Independent Counsel Reports,I16 which display evidence that witnesses were allegedly coached and corruptly influenced, including Mr Kilolo giving instructions in relation to what they ought to testify, as well as alleged fabrication of evidence. I17The Pre-Trial Chamber also found the Independent Counsel Reports to point to money transfers involving Mr Kilolo,118 as well as "conversations in which, inter alia, [Mr] Kilolo refers to instructions to be given to the witnesses, or makes comparisons between and complains about, witnesses' statements", collectively pointing to a 'scheme' of witness corruption in which Mr Kilolo "played a determinant role".119

text: 112 See Impugned Decision, para. 4. 113 Impugned Decision, para. 7. 114Impugned Decision, para. 8. 115Impugned Decision, para. 9. 116Impugned Decision, para. 10. 117 See Impugned Decision, para. II. 118See Impugned Decision, para. 12. 119 Impugned Decision, para. 13 (footnotes omitted). No: ICC-Ol105-01l13 OA 2 21/46

text: The Pre-Trial Chamber therefore clearly articulated the evidence establishing Mr Kilolo's alleged conduct which led the Pre-Trial Chamber to find that there were "reasonable grounds to believe" that the crimes alleged had been committed by Mr Kilolo. On the basis of this evidence, and in light of the requirement that this evidence need only at this stage of the proceedings support the standard of "reasonable grounds to believe", the Appeals Chamber can discern no clear error in the Pre-Trial Chamber's findings under

text: article 58

text: (1) (a) of

text: the Statute

text: in relation to Mr Kilolo, and accordingly finds no evidence that the Pre-Trial Chamber was biased.

text: The Appeals Chamber now turns to Mr Kilolo's contention that it was erroneous for the Pre-Trial Chamber to have merely "refer[ ed] to the materials listed in the arrest warrant as justification for continued detention" to support its finding under

text: article 58

text: (1) (a) of

text: the Statute

text: , insofar as "it cannot be assumed - on the basis of an article 58 (1) (a) arrest warrant issued against Mr Kilolo more than four months ago - that reasonable grounds for detention continue to exist".120 The Appeals Chamber finds this argument to be legally incorrect. In the Gbagbo OA Judgment, the Appeals Chamber held that, "in a decision under

text: article 60

text: (2) of

text: the Statute

text: , a Pre- Trial Chamber may refer to the decision on the warrant of arrest, without this affecting the de novo character of the Pre-Trial Chamber's decision".l2l Accordingly, the Pre-Trial Chamber in the instant case was at liberty to refer to the materials underpinning the Arrest Warrant Decision to support its finding under

text: article 58

text: (1) (a) of

text: the Statute

text: , as assessed de novo. Accordingly, Mr Kilolo's argument in this regard is dismissed.

text: Turning to Mr Kilolo's argument concerning purported racial bias on the part of the Pre-Trial Chamber in the Impugned Decision, the Appeals Chamber notes that Mr Kilolo refers to the Pre-Trial Chamber's finding in the Arrest Warrant Decision that there was a risk that he may flee to Cameroon.V' which the Pre-Trial Chamber recalled in the Impugned Decision.123 He also avers that the Pre-Trial Chamber referred to an African country as a possible destination only because of the colour of

text: 120 Document in Support of the Appeal, para 12 (emphasis in original omitted). 121 Gbagbo OA Judgment, para. 27. 122 See Document in Support of the Appeal, para. 13. 123 Impugned Decision, para. 20. No: ICC-Ol105-01l13 OA 2 22/46 his skin.124 However, the Appeals Chamber finds that an examination of the record of the case reveals that this argument is evidently unfounded. In that regard, there were submissions in the Application for Interim Release and the confidential version of the Application for Warrants of Arrest that specifically referred to Cameroon.J" Therefore this finding on the part of the Pre-Trial Chamber was clearly contextualised, being based both on the Application for Warrants of Arrest as well as the Application for Interim Release. Accordingly, the Appeals Chamber can discern no bias on the part of the Pre-Trial Chamber, and accordingly dismisses Mr Kilolo's argument in this regard.

text: (b) Alleged error regarding the gravity of the offences 62. The Appeals Chamber now turns to Mr Kilolo's argument in relation to the Pre- Trial Chamber's observation inthe Impugned Decision that offences under

text: article 70

text: of

text: the Statute

text: are "of the utmost gravity", which he avers "amounts to an unprecedented upgrading and equating of offenses (conviction of which is subject to a maximum of five years) to those heinous crimes punishable by life in prison".126Mr Kilolo submits that the gravity of the alleged offences against him are not "so heinous as to justify protracted detention". 127

text: The Appeals Chamber recalls that it has previously ruled that the gravity of crimes, and the concomitant sentence that may be imposed upon conviction, are relevant considerations in assessing the risk that a person may not appear at trial. 128

text: However, in the present case, the Pre-Trial Chamber's description of offences against the administration of justice as those "of the utmost gravity" is concerning. The Appeals Chamber emphasises that offences under

text: article 70

text: of

text: the Statute

text: article 5

text: of

text: the Statute

text: , being genocide, crimes against humanity, war crimes, and the crime of aggression, which are described in that provision to be "the most serious crimes of concern to the international community as a whole". The

text: 124 Document in Support of the Appeal, para. 13. 125 See Application for Interim Release, para. 25; Application for Warrants of Arrest, para. 89. 126Document in Support of the Appeal, para. 14 (emphasis in original). 127Document in Support of Appeal, para. 15. 128 See Gbagbo OA Judgment, para. 54; Mbarushimana OA Judgment, para. 21; Bemba OA 2 Judgment, para. 70; Bemba OA Judgment, para. 55; Ngudjolo OA 4 Judgment, para. 21; Lubanga OA 7 Judgment, para. 136. No: ICC-Ol105-01l13 OA 2 23/46 language used by the Pre-Trial Chamber in describing the offences for which Mr Kilolo was charged to be "of the utmost gravity" is therefore problematic, as it may give rise to a perception that the Pre-Trial Chamber accorded too much weight to the seriousness of the alleged offences in assessing the risk under

text: article 58

text: (1) (b) (i) of

text: the Statute

text: Notwithstanding, the Appeals Chamber notes that the Pre-Trial Chamber's observation in relation to the gravity of the offences allegedly committed by Mr Kilolo is supported by three reasons: (i) that offences against the administration of justice "threaten or disrupt the overall fair and efficient functioning of the justice in the specific case to which they refer"; (ii) that such offences "ultimately undermine the public trust in the administration of justice and the judiciary"; and (iii) that "[s]uch seriousness is only enhanced" when committed by those whose "professional mission is to serve, rather than disrupt, justice" .129 These reasons support the logic that the commission of offences against the administration of justice, as a discrete category, may have specific and serious ramifications (that is, on the case at hand and on the administration of justice more broadly). Therefore, given the detailed reasons put forward by the Pre-Trial Chamber for its observations, which are specific to offences under

text: article 70

text: of

text: the Statute

text: , the Appeals Chamber does not consider that the Pre- Trial Chamber actually sought to equate such offences with those under

text: article 5

text: of

text: the Statute

text: , despite the language it used. Therefore, notwithstanding the concerns outlined above, the Appeals Chamber does not find any clear error in this regard.

text: (c) Alleged error regarding the principle of the exceptionality

text: of detention

text: In relation to Mr Kilolo's argument that the Pre-Trial Chamber violated the principle of the exceptionality of detention, the Appeals Chamber notes that, under the heading "General Principles" in the Impugned Decision, the Pre-Trial Chamber explicitly recalled the exceptional nature of the detention.!" It then noted that, where the relevant statutory requirements are satisfied, "the presumption of innocence does not per se prevent detention't.!" The Appeals Chamber finds that, in so finding, the

text: 129 Impugned Decision, para. 23. 130See Impugned Decision, para. 3. 131Impugned Decision, para. 3. No: ICC-Ol105-01l13 OA 2 24/46

text: Pre-Trial Chamber was guided by the correct legal standard in making its decision under

text: article 60

text: (2) of

text: the Statute

text: In this regard, the Appeals Chamber recalls that it has previously recognised that "[t]he provisions of

text: the Statute

text: relevant to detention, like every other provision of it, must be interpreted and applied in accordance with 'internationally recognised human rights",.132 The exceptionality of detention and the presumption of innocence, as "internationally recognised human rights" under

text: article 21

text: (3) of

text: the Statute

text: , are therefore relevant to the interpretation of

text: articles 58

text: (1) and

text: (2) of

text: the Statute

text: . However, the thrust of decisions on interim release is the concrete assessment of whether "reasonable grounds to believe" the suspect committed the alleged crimes continues to exist and that the conditions under article 58 (1) (b) are met. Therefore, if the conditions underpinning article 58 (1) are satisfied, detention of a suspect will be justifiable and consonant with internationally recognised human rights principles. The Appeals Chamber also notes that

text: article 60

text: (4) of

text: the Statute

text: provides that "[t]he Pre- Trial Chamber shall ensure that a person is not detained for an unreasonable period prior to trial due to inexcusable delay by the Prosecutor. If such delay occurs, the Court shall consider releasing the person, with or without conditions".

text: In light of these considerations, the Appeals Chamber finds that pre-trial detention, whilst to be ordered exceptionally, does not breach internationally recognised human rights or criminal law principles such as the presumption of innocence where it is justified under

text: articles 58

text: (1) and

text: (2) of

text: the Statute

text: , and can therefore discern no clear error on the part of the Pre-Trial Chamber in finding the conditions underpinning

text: article 58

text: (1) of

text: the Statute

text: were met.

text: In relation to Mr Kilolo's argument that the Pre-Trial Chamber reversed the burden of proof by finding that "the Defence's failure to address the material submitted by the Prosecutor fully persuades [it] as to the convincing nature of the materials",133the Appeals Chamber finds that Mr Kilolo misrepresents the process by which the Pre-Trial Chamber concluded the conditions underpinning article 58 (1) (a)

text: 132 Ngudjolo OA 4 Judgment, para. 15, referring to Prosecutor v. Thomas Lubanga Dyilo, "Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to

text: article 19

text: (2) (a) of

text: the Statute

text: of 3 October 2006", 14 December 2006, ICC-01l04-01/06-772 (OA 4), para. 36 (footnote omitted). 133 Document in Support of the Appeal, para. 21. No: ICC-Ol105-01l13 OA 2 25/46 of

text: the Statute

text: continued to be met. The Pre-Trial Chamber clearly stated that, for the purposes ofMr Kilolo's Application for Interim Release, it had assessed the evidence before it "ex novo", notwithstanding the fact that Mr Kilolo elected not to address said evidence.l" The Appeals Chamber finds that conducting a new assessment militates against any allegation of a burden-shifting to Mr Kilolo, given that it demonstrates that the Pre-Trial Chamber followed the correct procedure under

text: article 60

text: (2) of

text: the Statute

text: , notwithstanding the dearth of further submissions before it in relation to the said material. The Appeals Chamber therefore finds nothing to suggest that the Pre- Trial Chamber reversed the burden of proof, and consequently dismisses Mr Kilolo's argument on this point.

text: Accordingly, the Appeal Chamber dismisses Mr Kilolo's first ground of appeal.

text: c. Second ground of appeal

text: Under his second ground of appeal, Mr Kilolo submits that the Pre-Trial Chamber erroneously assessed "ex novo" the conditions underpinning

text: article 58

text: (1) (a) of

text: the Statute

text: in its consideration of interim release under

text: article 60

text: (2) of

text: the Statute

text: , namely, whether reasonable grounds existed to believe that Mr Kilolo committed the offences alleged, rather than focusing on those underpinning

text: article 58

text: (1) (b) of

text: the Statute

text: . 135

text: Relevant part a/the Impugned Decision

text: In the Impugned Decision, the Pre-Trial Chamber noted that in "referring to '

text: article 58

text: , paragraph 1',

text: article 60

text: (2) of

text: the Statute

text: seems to require the Pre-Trial Chamber to proceed anew to an assessment of both the existence of reasonable grounds to believe that the crimes alleged by the Prosecutor have been committed by the arrested person (article 58(1)(a)[)], and of the existence of one or more of the risks listed under article 58(1)(b)".136Notwithstanding, it queried "to what extent a Pre- Trial Chamber (namely, the same Pre-Trial Chamber who has issued the warrant of arrest) can be meaningfully called upon reassessing the existence of reasonable grounds to believe that a crime has been committed in the context of an application

text: 134 Impugned Decision, paras 15-16. 135 Document in Support of the Appeal, paras 22-23. 136 Impugned Decision, para. 5. No: ICC-Ol105-01l13 OA 2 26/46 for interim release" under

text: article 58

text: (1) (a) of

text: the Statute

text: .l " The Pre-Trial Chamber further noted that the practice of most Chambers of the Court in making decisions on interim release "seems, most appropriately, to have rather focussed on the determination as to whether one or more of the risks listed under letter b of article 58(1) still exist". 138

text: However, regardless of these observations, the Pre-Trial Chamber stated that it would nonetheless assess the "persisting existence" of reasonable grounds to believe that Mr Kilolo had committed the crimes alleged, as articulated below.!"

text: Having noted that Mr Kilolo had elected not to address any of the materials attached to the Application for Warrants of Arrest, nor the Independent Counsel Reports underpinning its findings under

text: article 58

text: (1) (a) of

text: the Statute

text: .l"" the Pre- Trial Chamber found that, "under these circumstances", it was still fully persuaded that, based on an "ex novo" assessment of these materials, reasonable grounds continued to exist that Mr Kilolo committed the crimes alleged by the Prosecutor "and that, therefore, the requirements under

text: article 58

text: (1)(a) of

text: the Statute

text: continue to be satisfied".141

text: The Pre-Trial Chamber then went on to consider separately the conditions underpinning

text: article 58

text: (1) (b) of

text: the Statute

text: , ultimately concluding that the conditions of each of the subparagraphs in article 58 (1) (b) (i) to (iii) were met.142

text: Mr Kilolo argues that decisions on interim release are "premised on the existence of those risks posed in [a]rticle 58(1)(b)" of

text: the Statute

text: .143 Mr Kilolo avers that the Pre-Trial Chamber erred in its "reiteration of the Prosecutor's unsubstantiated evidence in her [a]rticle 58(1)(a) Application for an arrest warrant'?'?" given that "[a]rticle 58(1)(b) is the applicable rule" in taking a decision on an application for

text: 137 Impugned Decision, para. 5. 138 Impugned Decision, para. 5. 139 Impugned Decision, para. 5. 140 Impugned Decision, para. 15. 141 Impugned Decision, para. 16. 142 Impugned Decision, paras 17-40. 143 Document in Support of the Appeal, para. 22. 144Document in Support of the Appeal, para. 22. No: ICC-Ol105-01l13 OA 2 27/46 interim release.l'" He posits that contesting the Prosecutor's allegations in an interim release request would be a "clear conflation of two distinct legal rules under [a]rticle 58(1) and would amount to a mini-trial" prior to any charges having been confirmed.!" Mr Kilolo avers further that such a conflation means that, once the warrant of arrest under

text: article 58

text: (1) (a) of

text: the Statute

text: has been issued, the conditions of

text: article 58

text: (1) (b) of

text: the Statute

text: would be satisfied automatically, thus "negating the purpose of an ex novo review" and as a result, precluding Mr Kilolo "from successfully arguing for interim release". 147

text: He argues that interim release requests are not an appropriate avenue to challenge decisions on warrants of arrest, and that, by considering the materials supporting the warrant of arrest in deciding whether to release him, the Pre-Trial Chamber "effectively precludes Mr Kilolo from successfully arguing for interim release" .148

text: Prosecutor's submissions before the Appeals Chamber 78. The Prosecutor submits that Mr Kilolo's argument that the Pre-Trial Chamber inappropriately assessed "ex novo" whether reasonable grounds existed to believe that Mr Kilolo committed the offences alleged "is legally incorrect".149 She notes that

text: article 60

text: (2) of

text: the Statute

text: requires the Pre-Trial Chamber to satisfy itself of both of the conditions under

text: article 58

text: (1) (a) and (b) of

text: the Statute

text: , and accordingly, that in assessing the factors relating to both provisions, the Pre-Trial Chamber "upheld Kilolo's right to have the evidentiary basis for his detention reviewed in light of any changed circumstances" .150

text: Determination by the Appeals Chamber

text: The Appeals Chamber finds Mr Kilolo's argument in relation to the irrelevance of

text: article 58

text: (1) (a) of

text: the Statute

text: to a decision on interim release to be legally incorrect.

text: Article 60

text: (2) of

text: the Statute

text: provides that "[i]f the Pre-Trial Chamber is satisfied that the conditions set forth in article 58, paragraph 1, are met, the person shall continue to be detained". Therefore, it is clear that the conditions underpinning

text: 145Document in Support of the Appeal, para. 23. 146 Document in Support of the Appeal, para. 23 (emphasis in original omitted). 147 Document in Support of the Appeal, para. 23. 148 Document in Support of the Appeal, para. 23 (emphasis in original omitted). 149 Response to the Document in Support of the Appeal, para. 11. 150 Response to the Document in Support of the Appeal, para. 11. No: ICC-Ol105-01l13 OA 2 28/46 both

text: article 58

text: (1) (a) and (b) of

text: the Statute

text: must continue to be satisfied in order to maintain the detention of a suspect. Indeed, this reflects the well-established practice in the jurisprudence of the Court relating to

text: article 60

text: (2) of

text: the Statute

text: Furthermore, the Appeals Chamber considers Mr Kilolo's argument that an "ex novo" assessment of

text: article 58

text: (1) (a) of

text: the Statute

text: would unduly require the suspect to contest the Prosecutor's allegations before any charges have been confirmed, to be misguided.152 Indeed, proceedings under

text: article 60

text: (2) of

text: the Statute

text: constitute an early opportunity, following the arrest of a suspect, to make submissions in relation to the charges alleged. Thus, requiring the Pre-Trial Chamber to assess anew whether "reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court",153 exists, not only safeguards the right of the suspect to be heard on and to challenge this fundamental question at a very early stage of the proceedings, but also ensures the legality of his detention.

text: Accordingly, the Appeals Chamber dismisses Mr Kilolo's second ground of appeal.

text: D. Third ground of appeal

text: Under his third ground of appeal, Mr Kilolo submits that the applicable standard in the assessment of the conditions set out in

text: article 58

text: (1) (b) of

text: the Statute

text: entails the establishment of "specific and concrete elements", which according to Mr Kilolo, establishes a "two-prong test whereby the risk must be (i) concrete and (ii) specijic".154 In particular, Mr Kilolo argues that the Pre-Trial Chamber erred in its assessment of the conditions of

text: article 58

text: (1) (b) of

text: the Statute

text: that: (i) he poses a risk of absconding; (ii) would obstruct or endanger the Court proceedings; or (iii) would commit future related crimes.155 The Appeals Chamber will address Mr Kilolo's arguments challenging each limb of

text: article 58

text: (1) (b) of

text: the Statute

text: in turn.

text: 151 See, e.g., Ngudjolo OA 4 Judgment, paras 12, 18; Gbagbo OA Judgment, paras 25, 27. 152 Document in Support of the Appeal, para. 23. 153Article 58 (1) (a) of

text: the Statute

text: . 154Document in Support of the Appeal, para. 24 (emphasis in original). 155Document in Support of the Appeal, paras 25-44. No: ICC-Ol105-01l13 OA 2 29/46

text: Relevant part a/the Impugned Decision

text: (a)

text: Article 58

text: (1) (b) (i) of

text: the Statute

text: 83. With respect to whether the detention appears necessary to ensure Mr Kilolo's appearance at trial, the Pre-Trial Chamber found that although Mr Kilolo handed over his passport to the Court's authorities, this did not "detract from the risks of flight which are inherent in the very connection of [Mr] Kilolo to the network of [Mr] Bemba and to the ensuing likelihood that he might be made available resources enabling him to abscond from the jurisdiction of the Court".IS6It noted Mr Kilolo's request to be released to Belgium, a State in the Schengen area, where it is possible to travel without the need to show identification papers, and the Belgian Authorities' Observations with regard to the configuration of the country and the close proximity of Mr Kilolo' s residence to a national airport.IS7

text: In terms ofMr Kilolo's connection to Mr Bemba and his network, the Pre-Trial Chamber did not consider that Mr Kilolo's withdrawal as lead counsel for Mr Bemba in the Bemba Case necessarily involved "the severance of all of his ties to [Mr Bemba]'s vast network and hence to the concrete risk that resources be made available to him for the purpose of evading justice'v'" The Pre-Trial Chamber was of the view that even if Mr Kilolo had not had any close contacts with Mr Bemba since 6 December 2013, this did not imply that "the long-established relationship between Mr Bemba and Mr Kilolo by virtue of the latter's role as lead counsel in the [Bemba] Case ha[d] ceased to exist" and that "the absence of documents witnessing to the existence of a [personal relationship] between the two cannot be considered as mitigating or otherwise affecting this conclusion [in relation to the concrete risk of flight]".159

text: The Pre-Trial Chamber noted also the advanced stage of the disclosure process in the Bemba Case, a factor that was considered relevant in "weighing the likelihood

text: 156Impugned Decision, para. 22. 157Impugned Decision, para. 22. 158 Impugned Decision, para. 24. 159Impugned Decision, para. 24. No: ICC-Ol/05-01l13 OA 2 30/46 of the risk of flight, due to its resulting in enhancing the suspect's knowledge of the Prosecutor's case" .160

text: In the Impugned Decision, the Pre-Trial Chamber further noted Mr Kilolo's personal circumstances, and also recalled "the statements of individuals variously connected to [Mr] Kilolo and his family, witnessing to his personal and professional 6 qualities". 1 1 The Pre-Trial Chamber went on to observe that "the personality of a suspect is not one of the reasons on the basis of which the Chamber can or should determine whether detention is or continues to be necessary".162 The Pre-Trial Chamber considered that "[p]ersonal circumstances of education, professional or social status are per se neutral and inconclusive in respect of the need to assess the existence of flight risks" .163It added that "the fact that an individual has never in the past been charged or found guilty of offences against the administration of justice, or of any other nature, does not as such impact on the evaluation of the risks associated with the specific conduct which has led to his or her arrest, in the presence of other elements suitable to substantiate the existence of those risks".164 The Pre-Trial Chamber recalled that Mr Kilolo's "personal commitment not to abscond from the proceedings" although "commendable [... ] is not and cannot be per se decisive but should rather be assessed and appreciated in light of all other relevant factors". 165

text: With respect to Mr Kilolo's contention about the prejudices caused by his detention to his personal and professional life, the Pre-Trial Chamber found that "they are neither a factor which [... ] might per se influence the determination under

text: article 60

text: (2) of

text: the Statute

text: ".166 In addition, the Pre-Trial Chamber considered that the "reliability of some of Mr Kilolo' s statements in this context appear[ ed] significantly weakened by the results of the on-site searches conducted by the Belgian authorities", in relation to his legal practice being limited to a very small number of pending cases,

text: 160Impugned Decision, para. 28. 161Impugned Decision, para. 23. 162 Impugned Decision, para. 23. 163Impugned Decision, para. 23. 164 Impugned Decision, para. 23 (emphasis in original). 165 Impugned Decision, para. 29. 166 Impugned Decision, para. 32. No: ICC-Ol105-01l13 OA 2 31/46 his participation in Congolese political activities in 2006 and to his aged parents not being lodged at his residence.l'"

text: (b)

text: Article 58

text: (1) (b) (ii) of

text: the Statute

text: 88. In relation to the risk of Mr Kilolo obstructing or endangering the investigation or the Court proceedings, the Pre-Trial Chamber noted that the material attached to the Application for Warrants of Arrest and the Independent Counsel Reports indicated "several instances of conducts by [Mr] Kilolo directly aimed at influencing the content of the testimony to be given by witnesses in the [Bemba] Case".168It further noted that the Report of 14 November 2013 included "an element suitable to signal to Mr Kilolo's readiness to take action in respect of the ongoing investigation and these proceedings". 169

text: The Pre-Trial Chamber was then satisfied that "these objective elements are serious and univocal enough as to adequately substantiate [its] assessment of the persisting existence of a risk that obstruction or endangerment of the proceedings does exist, both in respect of this case and of the [Bemba] Case, and that none of the arguments submitted by [... ] Mr Kilolo is suitable to weaken or otherwise affect this conclusion".17oIndeed, the Pre-Trial Chamber underlined that neither the fact that the testimonies of witnesses in the Bemba Case are completed, nor the fact that the Prosecutor declared that her investigations in the present case were almost completed, nor further that "items of evidence seized by the relevant national authorities upon their arrest are now beyond the suspects' reach, can be considered as decisive vis-avis the determination of the persisting existence of a risk that the course of justice be obstructed or interfered with".171The Pre-Trial Chamber noted the possibility of the Bemba Case being reopened and that "future and related crimes [... ] might also be committed by the suspect in respect to these proceedings" .172

text: (c)

text: Article 58

text: (1) (b) (iii) of

text: the Statute

text: 90. With regard to the necessity of detention to prevent Mr Kilolo from continuing with the commission of related offences, the Pre-Trial Chamber recalled the standard

text: 167 Impugned Decision, paras 27, 32. 168 Impugned Decision, para. 34. 169Impugned Decision, para. 34. 170Impugned Decision, para. 35. 171Impugned Decision, para. 36. 172 Impugned Decision, para. 36. No: ICC-Ol105-01l13 OA 2 32/46 stated in the jurisprudence of the Court that the "risk relating to the possible commission of related crimes, by its very nature, is such as to make it impossible to specify in detail what the nature of such crimes might be, or the context in which they might be committed" .173 The Pre-Trial Chamber found in the Impugned Decision that the nature of the offences in the present case was "such as to create a great degree of overlapping between the risk that the investigation be obstructed or endangered and the risk that the commission of the crimes be continued or that related crimes be committed't" It further held, on the basis of intercepts ofMr Kilolo's conversations, that "it is likely that he might take additional action, similar in nature to that mirrored in [the] Independent Counsel [R]eports, in respect of other evidentiary items which might be outstanding'"!" The Pre-Trial Chamber recalled its observations in relation to the risks that the investigation or the court proceeding be obstructed or endangered "in light of the conducts carried out by [Mr] Kilolo [... ] prior to his arrest, [were] still outstanding" and relevant to its assessment under

text: article 58

text: (1) (b) (iii) of

text: the Statute

text: .i" The Pre-Trial Chamber was therefore satisfied that "a concrete risk that [Mr] Kilolo might commit crimes related to, or of the same nature of, those underlying the [Application for Warrants of Arrest] and the [Arrest Warrant Decision] continues to exist unabated" .177

text: (a)

text: Article 58

text: (1) (b) (i) of

text: the Statute

text: 91. Mr Kilolo submits that the Pre-Trial Chamber erred in finding that he is part of Mr Bemba's network "in the absence of any concrete or specific ties between [himself] and Mr Bemba's network" and that the Pre-Trial Chamber's "assumption" that he is '''an associate' of Mr Bemba is baseless" and lacks reasoning.l " He contends that there is no evidence showing a personal relationship between Mr Bemba and himself outside of a professional one.179 In that regard, he maintains that their two-year professional relationship cannot constitute "concrete evidence of a personal

text: 173 Impugned Decision, para. 39, referring to Gbagbo OA Judgment, para. 70. 174 Impugned Decision, para. 39. 175 Impugned Decision, para. 36. 176 Impugned Decision, para. 39. 177 Impugned Decision, para. 40. 178 Document in Support of the Appeal, paras 25, 27. 179 Document in Support of the Appeal, para. 26. No: ICC-Ol/05-0l/13 OA 2 33/46 relationship or involvement in a client's network".180Mr Kilolo adds that there is no "clear and irrefutable showing that Mr Bemba would finance the getaway of a professional acquaintance and a showing that he would do so for Mr Kilolo specifically, [... J such scenario [... J cannot be used as a factual basis on which to satisfy legal criteria". I81

text: As to his ability to travel, Mr Kilolo avers that, since he does not have any identification documents that would allow him to travel freely within or outside the Schengen area, in particular to the DRC or Cameroon, he cannot abscond from the jurisdiction of the Court.182 Mr Kilolo further submits that his participation in Congolese politics by running for political office eight years ago cannot constitute concrete evidence of a risk of flight, as he cannot enter the DRC without the required travel authorisation and visas, which he does not possess.l'" He argues that his request to be released in Belgium, a State Party to the

text: Rome Statute

text: and his place of residence, militates against any "real risk of flight".184 As for the Belgium Authorities' Observations that "the structure of Belgium is such as to enable a quick getaway, especially in light of the proximity of a national airport to Mr Kilolo's residence", Mr Kilolo contends that these observations fall short of showing a concrete or specific risk of flight as he is no longer in possession of any travel documents. 185

text: Mr Kilolo further argues that the Pre-Trial Chamber erred in stating that 'the prejudices allegedly entailed by the protracted detention to Mr Kilolo's personal and professionallife ... are [not]... a factor which might per se influence the determination under

text: article 60

text: (2) of

text: the Statute

text: ' .186Mr Kilolo submits that his strong ties to Belgium would mitigate his flight risk.187 In particular, Mr Kilolo contends that his entire personal and professional activities are in Belgium, that he needs to resume his professional activities as he is the source of revenue for his family and that he would never compromise his career in Belgium or the well-being of his family by

text: 180 Document in Support of the Appeal, para. 27. 181 Document in Support of the Appeal, para. 28 (emphasis in original). 182 Document in Support of the Appeal, paras 29-33. 183 Document in Support ofthe Appeal, para. 30. 184 Document in Support of the Appeal, para. 32. 18S Document in Support of the Appeal, para. 33. 186 Document in Support of the Appeal, para. 34. 187 Document in Support of the Appeal, paras 34-37. No: ICC-Ol/05-0l/13 OA 2 34/46 absconding.l'" Mr Kilolo further challenges the Belgian Authorities' Observations that his legal practice in Belgium comprises only of a small number of pending cases by arguing that he was merely adhering to his obligations imposed by the Court to maintain a "residence and nucleus of professional activity in The Hague" for the purpose of his cases before the Court, and that he cannot now be reprimanded for 1 complying with these obligations. 89

text: (b)

text: Article 58

text: (1) (b) (ii) of

text: the Statute

text: 94. Mr Kilolo alleges that there is no evidence to support the Pre-Trial Chamber's finding that he may obstruct or endanger ongoing investigations or Court proceedings and that the Pre-Trial Chamber failed to provide reasoning as to the "concrete and specific risk" in that regard.l'" In support of his submission, Mr Kilolo submits that since he is no longer the lead counsel ofMr Bemba in the Bemba Case, he is therefore not privy to privileged, confidential information or contact details of witnesses thereto.!" He adds that all materials in the Bemba Case have now been disclosed to the new lead counsel."?

text: Furthermore, Mr Kilolo submits that, whilst in detention, he is able to communicate with third parties by telephone, as well as with the other detained suspects.!" In contrast, he argues that, if released, he would have limited contact with Mr Bemba and other persons since he would not appear on Mr Bemba's phone list of privileged persons allowed to communicate with him from the outside world.l'"

text: (c)

text: Article 58

text: (1) (b) (iii) of

text: the Statute

text: 96. Mr Kilolo contends that the Pre-Trial Chamber "failed [... J to demonstrate a 'concrete risk'" that he might commit further offenccs.!" In support of his contention, Mr Kilolo argues that the terms used by the Pre-Trial Chamber such as he 'might',

text: 188 Document in Support of the Appeal, paras 34-35, 37. 189 Document in Support of the Appeal, para. 36. 190 Document in Support of the Appeal, para. 39. 191 Document in Support of the Appeal, para. 39. 192 Document in Support of the Appeal, para. 39. 193 Document in Support of the Appeal, para. 40. 194 Document in Support of the Appeal, para. 40. 195 Document in Support of the Appeal, para. 42 (emphasis in original). Mr Kilolo's arguments relating to the Pre-Trial Chamber's language showing his presumed guilt at paragraphs 41 and 42 of the Document in Support of the Appeal are addressed in the above sub-section "Alleged bias of the Pre- Trial Chamber" under his first ground of appeal. No: ICC-Ol105-01l13 OA 2 35/46

text: 'likely' or 'could' commit further offences do not amount to concrete risk.l96 He further alleges that the Pre-Trial Chamber erred in holding that future crimes are "by their very nature 'impossible to specify in detail" as this contravenes the 'concrete and specific' standard set out in

text: article 58

text: (1) (b) of

text: the Statute

text: The Prosecutor's submissions before the Appeals Chamber

text: At the outset, the Prosecutor argues that Mr Kilolo's arguments should be dismissed as they amount to mere disagreement with the Pre-Trial Chamber's findings, and fail to show any error in the Pre-Trial Chamber's consideration of the conditions under

text: article 58

text: (1) (b) of

text: the Statute

text: .!" The Prosecutor further challenges Mr Kilolo's submission that the Pre-Trial Chamber "misapplied the legal standard used to assess risk", which the Prosecutor argues is the "'possibility, not the inevitability' test" and his proposed test where "'possible' means 'likely' is contrived, and not supported by the jurisprudence of this Court or by the words' plain meaning" .199

text: (a)

text: Article 58

text: (1) (b) (i) of

text: the Statute

text: 98. The Prosecutor refutes Mr Kilolo's contention in relation to his association with Mr Bemba as the Pre-Trial Chamber provided a "clear and detailed reasoning" on their continued association and its relevance to the assessment of the condition under article 58 (1) (b) (i) of the Statute_2°oThe Prosecutor avers that Mr Kilolo does not show why the Prosecutor should "make 'a clear and irrefutable showing' of Mr Bemba financing Mr Kilolo's getaway rather than the 'possibility' threshold applicable at this stage of the proceedings.i'" According to the Prosecutor, there is "a wealth of evidence tying [Mr] Kilolo to [Mr] Bemba outside of a strictly professional relationship, including criminal conduct and political activities"_202

text: The Prosecutor further argues that Mr Kilolo fails to demonstrate that the Pre- Trial Chamber erred in relying on his ability to travel in Europe without a passport as

text: 196Document in Support ofthe Appeal, para. 43, referring to Impugned Decision, para. 36. 197 Document in Support of the Appeal, para. 44, referring to Impugned Decision, para. 39. 198Response to the Document in Support of the Appeal, para. 12. 199 Response to the Document in Support of the Appeal, para. 13. 200 Response to the Document in Support of the Appeal, para. 15. 201 Response to the Document in Support of the Appeal, para. 15. 202 Response to the Document in Support of the Appeal, para. 15 (footnotes omitted). No: ICC-Ol105-01l13 OA 2 36/46 this reliance is "consistent with Chambers in other cases"_2°3 She contends that Mr Kilolo's claim regarding the possibility for him to travel to Cameroon, "mischaracterises" the Impugned Decision as the Pre-Trial Chamber simply repeated its findings made in the Arrest Warrant Decision_2°4The Prosecutor adds that Mr Kilolo merely seeks to re-litigate the Impugned Decision when responding to the Prosecutor's arguments and repeating his personal guarantee.i'"

text: The Prosecutor adds that Mr Kilolo also attempts to re-litigate the flight risk issue by repeating previous submissions relating to his personal and professional circumstances in Belgium without identifying an error in the Impugned Decision_206

text: (b)

text: Article 58

text: (1) (b) (ii) of

text: the Statute

text: 101. The Prosecutor submits that Mr Kilolo's allegation that the Pre-Trial Chamber's reasoning on

text: article 58

text: (1) (b) (ii) of

text: the Statute

text: being '''conspicuously absent' from the [Impugned] Decision is broad, unsupported, and amounts to a disagreement with the [Pre-Trial Chamber]'s conclusion rather than an identification of a discernible error" _207The Prosecutor emphasises that six paragraphs in the Impugned Decision are devoted to the assessment of the underlying evidence.i'" The Prosecutor adds that Mr Kilolo's argument that if released his contact with Mr Bemba would be more limited is "internally inconsistent" as he simultaneously submits that "those in the ICC Detention Centre are allowed 'unimpeded contact with the external world"'_209

text: (c)

text: Article 58

text: (1) (b) (iii) of

text: the Statute

text: 102. The Prosecutor contends that Mr Kilolo's characterisation of the Impugned Decision as being too 'general' and "not 'concrete" is unsubstantiated since the applicable test is the 'possibility, not the inevitability, of a future occurrence' _210In that regard, the Prosecutor argues that Mr Kilolo's test of a 'concrete risk' "conflates

text: 203 Response to the Document in Support of the Appeal, para. 16, referring to The Prosecutor v. Bosco Ntaganda, "Decision on the Defence's Application for Interim Release", 18 November 2013, ICC- 01104-02/06-147, para. 53; The Prosecutor v. Callixte Mbarushimana, "Decision on the 'Defence Request for Interim Release''', 19 May 2011, ICC-OI/04-01110-163, para. 57. 204 Response to the Document in Support of the Appeal, para. 16. 205 Response to the Document in Support of the Appeal, para. 16. 206 Response to the Document in Support of the Appeal, para. 17. 207 Response to the Document in Support of the Appeal, para. 18. 208 Response to the Document in Support of the Appeal, para. 18, referring to Impugned Decision, paras 33-38. 209 Response to the Document in Support of the Appeal, para. 18. 210 Response to the Document in Support of the Appeal, para. 19. No: ICC-Ol105-01l13 OA 2 37/46 two distinct concepts" and explains that the Pre-Trial Chamber's finding that "future crimes were 'impossible to specify in detail' did not contravene the separate 'concrete and specific' standard because the risk of the commission of crimes, which must be established based on concrete evidence, is separate from the nature of the crime being 'impossible to specify in detail'".""

text: Determination by the Appeals Chamber

text: The Appeals Chamber will assess in turn Mr Kilolo's arguments in relation to the Pre-Trial Chamber's conclusion that his continued detention appeared necessary under

text: article 58

text: (1) (b) of

text: the Statute

text: (a)

text: Article 58

text: (1) (b) (i) of

text: the Statute

text: 104. With respect to Mr Kilolo's argument regarding the lack of evidence showing a personal relationship between Mr Kilolo and Mr Bemba, or that he could use Mr Bemba's network to abscond, the Appeals Chamber recalls that the Pre-Trial Chamber relied on its findings made in the Arrest Warrant Decision regarding Mr Kilolo's connection to Mr Bemba's network and that his access to Mr Bemba's financial resources could allow him to abscond.i" The Pre-Trial Chamber rejected the argument that, given that Mr Kilolo is no longer Mr Bemba's counsel, it cannot be said that Mr Kilolo still has ties to Mr Bemba's network.i" In that same vein, the Pre- Trial Chamber's finding regarding Mr Kilolo's connection to Mr Bemba's network appears to stem from the nature and the alleged organised character of the offences charged against him.214The Appeals Chamber recalls that when reaching a decision under

text: article 60

text: (2) of

text: the Statute

text: , "the Pre-Trial Chamber has to 'inquire anew into the existence of facts justifying detention'; the Pre-Trial Chamber's power is 'not conditioned by its previous decision to direct the issuance of a warrant of arrest"'_215 The Pre-Trial Chamber may rely on evidence that was already before it when it issued the warrant of arrest, "as long as it is persuaded that the evidence, at the time of the decision under

text: article 60

text: (2) of

text: the Statute

text: , justifies the finding in question".216

text: 211 Response to the Document in Support of the Appeal, para. 19 (emphasis in original). 212 Impugned Decision, para. 20, referring to Arrest Warrant Decision, para. 22. 213 See Impugned Decision, para. 24. 214 See Impugned Decision, paras 6-7, 13;Arrest Warrant Decision, para. 13. 215 Gbagbo OA Judgment, para. 23; Ngudjolo OA 4Judgment, para. 10.. 216 See Gbagbo OA Judgment, para. 69. No: ICC-Ol105-01l13 OA 2 38/46

text: The Appeals Chamber is not persuaded by Mr Kilolo's argument in relation to his access to Mr Bemba's network of supporters. While it is true that the Impugned Decision and the Arrest Warrant Decision do not refer to the evidence when making the relevant findings, the Appeals Chamber notes that the Prosecutor submitted in the Application for Warrants of Arrest that people close to Mr Bemba had previously provided him with large amounts of money_2!7The Appeals Chamber infers that this is what the Pre-Trial Chamber was referring to when stating its findings in terms of access to a network.i" Accordingly, while the Impugned Decision in this respect is somewhat unclear, the Appeals Chamber nevertheless can discern how the Pre-Trial Chamber reached the findings it did, based on the totality of the evidence before it. In the view of the Appeals Chamber, it was not unreasonable for the Pre-Trial Chamber to conclude that, given that there was an indication that supporters of Mr Bemba had previously made money available to Mr Kilolo, they could also do so to allow him to evade justice.

text: With respect to Mr Kilolo's contention that his participation in Congolese politics in 2006 cannot constitute concrete evidence of a flight risk as this was eight years ago, and further, that he cannot enter the DRC without the required travel documents.i'" the Appeals Chamber finds that Mr Kilolo misreads the Pre-Trial Chamber's statement regarding his political activities in the DRC in 2006. The Pre- Trial Chamber referred to information obtained from the Belgian Authorities that he created a political party in the DRC and ran as a candidate of that party for the DRC presidential elections in 2006 in the context of Mr Kilolo's claim that he was living only in the "judicial sphere"_22oThe Pre-Trial Chamber found that this claim "appear] ed] significantly weakened by the results of the on-site searches conducted by the Belgian authorities'v'" Thus, the Pre-Trial Chamber did not rely on his political activities as evidence for a flight risk, but referred to it in the context of Mr Kilolo's

text: 217 Application for Warrants of Arrest, para. 54. While the Prosecutor cites at this paragraph no evidence in support of her submission, it appears that she is referring to allegations made at paragraph 46 of the Application for Warrants of Arrest which cites evidence relating to money transfers. See annexes B.4., B.6. and C.3. to Application for Warrants of Arrest: ICC-OI/05-01/13-19-Conf-AnxB.4., ICC-01l05-0 1/13-19-Conf-AnxB.6., ICC-01l05-01/13-19-Conf-AnxC.3. 218 See especially, Impugned Decision, para. 20. 219 Document in Support of the Appeal, para. 30. 220 The French original reads "univers judiciaire". See Impugned decision, para. 27. 221 Impugned Decision, para. 32. No: ICC-Ol105-0l/13 OA 2 39/46 claims as to his personal circumstances. Accordingly, Mr Kilolo's argument is dismissed.

text: Turning to Mr Kilolo's contention that he could not travel without any identification documents within or outside the Schengen area, the Appeals Chamber finds that the Pre-Trial Chamber's reliance on the Belgian Authorities' Observations as additional information pertaining to the risk of flight was not unreasonable. The Appeals Chamber recalls that the detention of the suspect "must 'appear' to be necessary" which implies that "the question revolves around the possibility, not the inevitability of a future occurrence".222In that regard, the Appeals Chamber notes that the Pre-Trial Chamber was aware of the fact that Mr Kilolo was no longer in possession of his passport, and noted the possibility that, if released in Belgium, Mr Kilolo could travel within the Schengen area without the need of identification documents.V' It further noted the Belgian Authority's Observations that the configuration of the country, as well as the fact that his residence was located near a national airport could provide him with the possibility to leave the country quickly, with the consequence that such a situation would require the issuance of a new warrant of arrest by the Pre-Trial Chamber, which could render Mr Kilolo's interception almost impossible.r'" What was at issue was not whether Mr Kilolo was legally required to be in possession of a travel document when travelling within the Schengen area, but whether he would likely be able to do so without such documents. The Appeals Chamber finds that it was not unreasonable for the Pre-Trial Chamber to conclude that if released in Belgium, Mr Kilolo could possibly travel within the Schengen area without his passport and thus this could increase the risk of absconding from the jurisdiction of the Court.

text: With respect to Mr Kilolo's contention that the Pre-Trial Chamber erred in finding that prejudices resulting from the continued detention of Mr Kilolo are irrelevant, the Appeals Chamber considers that the Pre-Trial Chamber's finding as such cannot be faulted. The Pre-Trial Chamber addressed the arguments raised by Mr Kilolo as to his personal circumstances from the perspective of whether the

text: 222 Ngudjolo OA 4 Judgment, para. 21. See also Mbarushimana OA Judgment, para. 60; Bemba OA Judgment, para. 55. 223 Impugned Decision, para. 22. 224 Impugned Decision, para. 22. No: ICC-Ol/05-0l/13 OA 2 40/46 prejudice caused by the detention, in particular to his family life, could be a factor in deciding to grant interim release_225In the view of the Appeals Chamber, the finding that such prejudice could not be a factor is unassailable. Any detention of a suspect pending investigation and trial is likely to cause prejudice to the person concerned and those close to him. It is for that reason that under

text: the Statute

text: , the detention of a suspect is possible only under strict conditions, as set out in

text: article 58

text: (1) of

text: the Statute

text: . Nevertheless, the prejudice caused is in and of itself not a relevant consideration for a determination on interim release.

text: Furthermore, the Appeals Chamber is not convinced by Mr Kilolo's contention regarding the Belgian Authorities' Observations about his legal practice in Belgium. The Appeals Chamber finds that the Pre-Trial Chamber, by noting that the reliability of Mr Kilolo' s statements "appeared significantly weakened by the results of the onsite searches conducted by the Belgian authorities" on the situation of his professional activities in Belgium, was simply assessing the accuracy of his submission.f" In that regard, Mr Kilolo even appears to confirm Belgian Authorities' Observations when stating that he had the obligation imposed by the Court to maintain "a residence and nucleus of professional activity in The Hague".227Accordingly, Mr Kilolo's argument on this point is dismissed.

text: Additionally, the Appeals Chamber notes that Mr Kilolo also questions the way in which the Pre-Trial Chamber dealt with the arguments pertaining to his personal circumstances (namely, "education, professional or social status") and how they related to

text: article 58

text: (1) (b) (i) of

text: the Statute

text: . In this regard, the Appeals Chamber recalls that under his first ground of appeal, Mr Kilolo argues that the Pre-Trial Chamber failed to consider his personal circumstances and failed to provide "any real reason" for doing SO.228 The Appeals Chamber recalls that the Pre-Trial Chamber noted Mr Kilolo's personal circumstances such as "education, professional or social status" were ''per se neutral and inconclusive in respect of the need to assess the existence of flight risks".229The Pre-Trial Chamber also found that the absence of a criminal record "did not as such impact on the evaluation of the risks associated" with

text: 225 See Impugned Decision, para. 32 (emphasis added). 226 Impugned Decision, para. 32. 227 Document in Support of the Appeal, para. 36. 228 Document in Support of the Appeal, paras 5-9. 229 Impugned Decision, para. 23. No: ICC-Ol105-01l13 OA 2 41/46

text: Mr Kilolo's conduct for which he was arrested, "in the presence of other elements suitable to substantiate the existence of those risks".23o

text: In relation to the relevance of personal circumstances in other courts and ad hoc tribunals, the Appeals Chamber notes that the European Court of Human Rights (hereinafter: "ECtHR") has developed an approach to the assessment of the flight risk, which does take into consideration the personal and professional circumstances of the suspect.231In that regard, the approach of the ECtHR is that the risk of absconding must be assessed in light of a number of relevant factors including those relating to the "person's character, his morals, home, occupation, assets, family ties" in addition to the expected length of the sentence and the weight of evidence.232 The Appeals Chamber also observes that Chambers of the International Criminal Tribunal for the former Yugoslavia (hereinafter: "ICTY"), in comparable cases, also took into account the suspects' personal circumstances.P" Consequently, while recognising that such factors were not ultimately afforded much weight in the ICTY decisions on interim release, the Appeals Chamber considers that any decision on whether a person is detained pending his or her trial at this Court ought to be made based on the specific circumstances of the case, as relevant to an assessment of whether or not a suspect is likely to appear before the Court. Personal circumstances of the suspect such as the suspect's education, professional or social status may be relevant to assessing whether or not a suspect will appear before the Court.

text: In the present case, the Appeals Chamber notes that at paragraph 29 of the Impugned Decision, the Pre-Trial Chamber stated it was "not persuaded that these factors", being factors supporting the existence of a risk of absconding "can be

text: 230 Impugned Decision, para. 23. 231 See, e.g., ECtHR, Aleksandr Novikov v. Russia, "Judgment", 11 July 2013, application no. 7087/04 (hereinafter: "Novikov Judgment"), para. 46; ECtHR, Sefilyan v. Armenia, "Judgment", 2 October 2012, application no. 22491/08, paras 86, 90; ECtHR, Samoylov v. Russia, "Judgment", 24 January 2012, application no. 57541/09, para. 107; ECtHR, Shenoyev v. Russia, "Judgment", 10 June 2010, application no. 2563/06, para. 54; ECtHR, Mamedova v. Russia, "Judgment", 1 June 2006, application no. 7064/05, para. 76; ECtHR, Becciev c. Moldova, "Judgment", 4 October 2005, application no. 9190103(hereinafter: "Becciev Judgment"), para. 58. 232 Novikov Judgment, para. 46; Becciev Judgment, para. 58. 233 See, e.g., ICTY, Trial Chamber, Prosecutor v. Astrit Haraqija and Bajrush Morina, "Decision on Defence application for provisional release of the accused Bajrush Morina", 15 September 2008, IT- 04-84-R77.4, para. 9; Trial Chamber, ICTY, Prosecutor v. Baton Haxhiu, "Decision on provisional release of Baton Haxhiu", 23 May 2008, IT-04-84-R77.5, para. 11; ICTY, Trial Chamber, Prosecutor v. Astrit Haraqija and Bajrusb Morina, "Decision on Defence motion for provisional release of the accused Bajrush Morina", 13 May 2008, IT-04-84-R77.4, para. 13. No: ICC-Ol105-01l13 OA 2 42/46 outweighed either by any of the ' [material changes J' identified as relevant by [Mr KiloloJ, or by his personal commitment not to abscond". These alleged "material changes" are outlined in Mr Kilolo's Application for Interim Release, and several pertain to Mr Kilolo's personal circumstances, including, inter alia, "education, professional or social status".234 The Appeals Chamber notes that the Pre-Trial Chamber initially qualified "education, professional or social status" to be ''per se neutral and inconclusive in respect of the need to assess the existence of flight risks",235a statement which the Appeals Chamber considers to be ambiguous in meaning.

text: Nevertheless, and as reflected in the Pre-Trial Chamber's statement at paragraph 29 of the Impugned Decision, it appears that the Pre-Trial Chamber went on to assess such factors, as framed in Mr Kilolo's Application for Interim Release, in making its assessment under

text: article 58

text: (1) (b) (i) of

text: the Statute

text: . The same applies to Mr Kilolo's lack of criminal record, which the Appeals Chamber finds, was not considered irrelevant by the Pre-Trial Chamber, but was rather assessed as not impacting on its evaluation of "the risks associated" with Mr Kilolo's conduct for which he was arrested, "in the presence of other elements suitable to substantiate the existence of those risks".236 Therefore, in light of this, the Appeals Chamber finds the Pre-Trial Chamber considered these factors in weighing up the risks under

text: article 58

text: (1) (b) (i) of

text: the Statute

text: . Thus, the Appeals Chamber can discern no clear error in the Pre-Trial Chamber's concomitant findings.

text: (b)

text: Article 58

text: (1) (b) (ii) of

text: the Statute

text: 114. For the reasons that follow, the Appeals Chamber is not persuaded by the arguments advanced by Mr Kilolo in respect of

text: article 58

text: (1) (b) (ii) of

text: the Statute

text: . In respect ofMr Kilolo's argument that there is no evidence showing he will obstruct or endanger the court proceedings since he is no longer the lead counsel of Mr Bemba and that disclosure in the Bemba Case is completed, the Appeals Chamber finds no error in the Pre-Trial Chamber's finding that it could not "be excluded that the

text: 234 See Application for Interim Release, paras 19-24 (relevant to "social status"), paras 42-43 (relevant to "social status", in particular "criminal record"), para. 50 (relevant to "social status" and ''Erofessional status"). 2 5 Impugned Decision, para. 23. 236 Impugned Decision, para. 23. No: ICC-Ol105-01l13 OA 2 43/46

text: [Bemba] Case is reopened".237 In that regard, the Appeals Chamber notes that Mr Kilolo only ceased to be Mr Bemba's lead counsel when the disclosure of evidence in the Bemba Case reached an advanced stage. Therefore, Mr Kilolo already had acquired an enhanced knowledge of the Prosecutor's investigation and the evidence in that case. As to the potential for obstruction in relation to the case against Mr Kilolo himself, the Appeals Chamber recalls that the Pre-Trial Chamber elsewhere in the Impugned Decision noted that the disclosure process had started, enhancing Mr Kilolo's knowledge of the Prosecutor's case.238Given that the Pre-Trial Chamber had found reasonable grounds to believe that Mr Kilolo was responsible for offences under

text: article 70

text: of

text: the Statute

text: ,239the Appeals Chamber cannot find that the Pre-Trial Chamber's conclusion that his continued detention appeared necessary to prevent him from obstructing or endangering the investigation or court proceedings was unreasonable.

text: As regards Mr Kilolo's contention that he will be less likely to interfere with the court proceedings, if released, because he would have limited contact with Mr Bemba and other persons, the Appeals Chamber finds that this amounts to a mere disagreement with the Pre-Trial Chamber's finding that fails to show a clear error therein. Mr Kilolo's argument is therefore rejected.

text: (c)

text: Article 58

text: (1) (b) (iii) of

text: the Statute

text: 116. The Appeals Chamber finds Mr Kilolo's challenge to the Pre-Trial Chamber's finding that "risk relating to the possible commission of related crimes, by its very nature, is such as to make it impossible to specify in detail what the nature of such crimes might be,,240as contravening the "'concrete and specific' standard" to be without merit."" In the Gbagbo OA Judgment, the Appeals Chamber held that

text: article 58

text: (i) (b) (iii) of

text: the Statute

text: provides that the necessity for detention is to prevent the risk that further crimes may be committed; therefore "the issue isfuture crimes, which

text: 237 Impugned Decision, para. 36. 238 See Impugned Decision, para. 28. 239 See Impugned Decision, para. 37. 240 Impugned Decision, para. 39. 241 Document in Support of the Appeal, para. 44. No: ICC-Ol/05-01l13 OA 2 44/46 by their nature cannot be specified in detail".242Accordingly, Mr Kilolo's argument is wrong in law, and is consequently dismissed.

text: Turning to Mr Kilolo's contention that the Pre-Trial Chamber's conclusion amounts to "generalities" and fails to demonstrate the "concrete" risk that he will commit further crimes, the Appeals Chamber recalls that the question of the determination of whether detention appears necessary revolves "around the possibility, not the inevitability, of a future occurrence'Y'" On the basis of the available evidence, the Pre-Trial Chamber will weigh such evidence and make "a prediction as to the likelihood of future events,,?44 The Appeals Chamber finds that the Pre-Trial Chamber correctly articulated this standard.r" Furthermore, it referred to the material attached to the Application for Warrants of Arrest and the Independent Counsel Reports to bolster its conclusion that Mr Kilolo might commit further crimes ofa similar nature as to those charged against him.246Notably, the Pre-Trial Chamber clearly considered the "possibility" of further crimes being committed when finding that in light of the "pattern of conduct emerging from the intercepts of [Mr] Kilolo's conversations over the period [of] August-October 2013, it is likely that he might take additional action, similar in nature to that mirrored in [the] Independent Counsel [R]eports, in respect of other evidentiary items which might be outstanding, whether in relation to the [Bemba] Case or to these proceedings".247In the result, the Appeals Chamber cannot discern any clear error in the Pre-Trial Chamber's conclusion, and accordingly dismisses Mr Kilolo's argument.

text: IV. APPROPRIATE RELIEF

text: On an appeal pursuant to

text: article 82

text: (1) (d) of

text: the Statute

text: , the Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158 (1) of the Rules of Procedure and Evidence). In the present case it is appropriate to confirm the Impugned Decision as no appealable errors have been identified.

text: 242 Gbagbo OA Judgment, para. 70 (emphasis in original). 243 Ngudjolo OA 4 Judgment, para. 21. See also Bemba OA Judgment, para. 55; Mbarushimana OA Judgment, para. 60. 244 Mbarushimana OA Judgment, para. 60. 245 See Impugned Decision, para. 19. 246 See Impugned Decision, paras 34, 39. 247 Impugned Decision, para. 36. No: ICC-Ol105-01l13 OA 2 45/46

text: Judge Sanji Mmasenono Monageng Presiding Judge

text: Dated this n" day of July 2014 At The Hague, The Netherlands

text: No: ICC-Ol105-01l13 OA 2 46/46