doctype: appeal-interlocutory

identifier: ICC-02/11-01/11 (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 Gbagbo's detention pursuant to article 60(3) of the Rome Statute")

chamber: Appeals Chamber

decisionType: appeal-interlocutory

title: 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 Gbagbo's detention pursuant to article 60(3) of the Rome Statute"

text: Rome Statute

text: the Statute, article 58

text: Rome Statute, article 60

text: Rome Statute, article 61

text: the Statute, article 82

text: Cour Pénale I n t e r n a t i o n a l e

text: I n t e r n a t i o n a l C r i m i n a l C o u r t

text: Original: English NO.ICC-02/11.01/11OA4 Date: 29 October 2013

text: THE APPEALS CHAMBER

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

text: SITUATION IN THE REPUBLIC OF COTE DTVOIRE

text: IN THE CASE OF THE PROSECUTOR v. LAURENT GBAGBO

text: Public redacted version 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 Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: No: ICC-02/11-01/11 OA 4 1/44

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 Ms Fatou Bensouda, Prosecutor Mr Emmanuel Altit Mr Fabricio Guariglia Ms Agathe Bahi Baroan

text: Legal Representatives of Victims Ms Paolina Massidda Ms Sarah Pellet

text: REGISTRY Registrar Mr Herman von Hebel

text: No: ICC-02/11-01/11 OA 4 2/44

text: The Appeals Chamber of the Intemational Criminal Court, In the appeal of Mr Laurent Gbagbo against the decision of Pre-Trial Chamber I entitled "Third decision on the review of Laurent Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: " dated 11 July 2013 and registered on 12 July 2013 (ICC-02/11-01/11-454), After deliberation. By majority, Judge Anita Usacka dissenting, Delivers the following

text: J U D G M E N T

text: The "Third decision on the review of Laurent Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: " is confirmed. The appeal is dismissed.

text: REASONS

text: L KEY FINDINGS

text: It is first for the Pre-Trial Chamber to determine whether changed circumstances exist to warrant the disturbing of a previous mling on detention, rather than addressing each factor underpiiming detention in Side novo manner to determine whether any of these have changed.

text: IL PROCEDURAL HISTORY

text: A. Proceedings before the Pre-Trial Chamber

text: On 23 November 2011, Pre-Trial Chamber III issued the "Warrant of Arrest For Laurent Koudou Gbagbo".* On 30 November 2011, Pre-Trial Chamber III rendered the "Decision on the Prosecutor's Application Pursuant to Article 58 for a warrant of arrest against Laurent Koudou Gbagbo"^ (hereinafter: "Arrest Warrant Decision"). Following his surrender to the Court, Mr Laurent Gbagbo (hereinafter: "Mr Gbagbo") ^

text: -US-Exp; public redacted version:

text: -Red. No: ICC-02/11-01/11 OA 4 3/44 first appeared before Pre-Trial Chamber III on 5 December 2011. He has been in detention at the Court since.

text: On 1 May 2012, Mr Gbagbo filed the "Requête de la Défense demandant la mise en liberté provisoire du Président Gbagbo""^ (hereinafter: "Application for Interim Release"), submitting that the grounds for detention under

text: article 58

text: (1) (b) of

text: the Statute

text: are not met, that the [REDACTED] (hereinafter: "[REDACTED]") has offered to receive Mr Gbagbo and to afford all necessary guarantees, and that Mr Gbagbo should be released to allow him to recover from the ill-treatment he is said to have suffered while in detention in Côte d'Ivoire, in order to be fit to stand trial.^

text: Judge Fernandez de Gurmendi, acting as single judge (hereinafter: "Single Judge"), rendered, on 13 July 2012, the "Decision on the 'Requête de la Défense demandant la mise en liberté provisoire du président Gbagbo'"^ (hereinafter: "Decision of 13 July 2012"), rejecting the Application for Interim Release. The Appeals Chamber, by majority. Judge Usacka and Judge Koumla dissenting, dismissed Mr Gbagbo's appeal in its judgment of 26 October 2012^ (hereinafter: "Gbagbo OA Judgment").

text: On 12 November 2012, the Single Judge issued the "Decision on the review of Laurent Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: " (hereinafter: "Decision of 12 November 2012"), rejecting Mr Gbagbo's request for interim release.^

text: On 18 January 2013, the Single Judge issued the "Decision on the request for the conditional release of Laurent Gbagbo and on his medical treatment" (hereinafter: "Decision of 18 January 2013"), rejecting Mr Gbagbo's request for conditional release. ^

text: ^ See ICC-02/11-01/11-T-l-ENG. "^ ICC-02/11-01/11-105-Conf-Red-Con-. See also ICC-02/11-01/11-105-Conf-tENG. ^ Application for Interim Release, para. 1. ^ ICC-02/11-01/11-180-Red. ^ "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 'Requête de la Défense demandant la mise en liberté provisoire du président Gbagbo"", 26 October 2012,

text: -Conf (OA). ^ ICC-02/11-01/11-291, para. 61 ; p. 25. ^ICC-02/ll-01/ll-362-Conf,p. 15. No: ICC-02/11-01/11 OA 4 4/44

text: On 12 March 2013, the Single Judge issued the "Second decision on the review of Laurent Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: " (hereinafter: "Decision of 12 March 2013"), deciding that Mr Gbagbo should remain in detention.*^

text: On 3 June 2013, Pre-Trial Chamber I (hereinafter: "Pre-Trial Chamber") issued the "Decision adjouming the hearing on the confirmation of charges pursuant to

text: article 61

text: (7)(c)(i) of the

text: Rome Statute

text: " (hereinafter: "Adjournment Decision"), in which it decided, by majority, to adjoum the confirmation of charges hearing to allow for the Prosecutor to consider providing further evidence or conducting further investigation with respect to all charges.**

text: On 3 July 2013, the Office of the Public Counsel for Victims*^ (hereinafter: "OPCV"), the Prosecutor,*^ and Mr Gbagbo*"* submitted their respective observations on the continued detention or release of Mr Gbagbo (hereinafter, respectively: "OPCV Observations of 3 July 2013", "Prosecutor's Submissions of 3 July 2013" and "Mr Gbagbo's Submissions of 3 July 2013").

text: On 11 July 2013, the Pre-Trial Chamber issued the "Third decision on the review of Laurent Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: "*^ (hereinafter: "Impugned Decision"), in which it decided that Mr Gbagbo should remain in detention.*^

text: ^^ ICC-02/11-01/11-417-Conf, p. 16. ^JlCC-02/ll-01/ll-432,p.22. ^^ "Observations du Représentant légal commun des victimes relatives au réexamen périodique de la détention de M. Gbagbo", ICC-02/11-01/11-444. Sec also ICC-02/11-01/11-444-tENG. ^^ "Observations de l'Accusation sur le réexamen de la détention provisoire de Laurent Gbagbo selon l'article 60(3) du Statut", ICC-02/11-01/11-445-Conf. See also ICC-02/11-01/11-445-Conf-tENG. ^^ "Soumissions de la défense sur les conditions d'application des dispositions de l'article 58(1), faites à l'invitation de la Chambre, dans le cadre du réexamen périodique de la détention", ICC-02/11-01/11- 446-Conf. ^^ICC-02/11-01/11-454. ^^ Impugned Decision, p. 19. No: ICC-02/11-01/11 OA 4 5/44

text: B. Proceedings before the Appeals Chamber

text: On 19 July 2013, Mr Gbagbo filed his appeal against the Impugned Decision*^

text: (hereinafter: "Appeal"), submitting that the Appeals Chamber should reverse the

text: Impugned Decision.

text: On 23 July 2013, the OPCV filed the "Application to Participate in the

text: Interlocutory Appeal Filed by the Defence against the 'Third decision on the review

text: of Laurent Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: ' of 12

text: July 2013"*^ dated 22 July 2013 and registered on 23 July 2013 (heremafter:

text: "Victims' Application").

text: On 27 August 2013, having considered the responses to the Victims'

text: Application of both the Prosecutor^^ and Mr Gbagbo,^* the Appeals Chamber

text: rendered a decision granting the 199 victims authorised to participate in the

text: proceedings by the Pre-Trial Chamber (hereinafter: "Victims") the right to participate

text: in the present appeal.^^

text: Having sought^^ and obtained^"* an extension of the time limit for the filing of

text: his document in support of the appeal, Mr Gbagbo filed, on 19 August 2013, the

text: "Document in support of the Defence appeal against Pre-Trial Chamber I's Third

text: decision on the review of Laurent Gbagbo's detention pursuant to article 60(3) of the

text: ^^ "Acte d'appel de la Défense relatif à la « Third decision on the review of Laurent Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: » de la Chambre préliminaire I décidant du maintien en détention du Président Gbagbo", ICC-02/11-01/11-459-Conf (OA 4). ^^ Appeal, para. 40. ^^ ICC-02/11-01/11-460 (OA 4). ^^ "Prosecution's Observations on the 'Application to Participate in the Interlocutory Appeal Filed by the Defence against the Third decision on the review of Laurent Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: ' of 12 July 2013'", 14 August 2013, ICC-02/11-01/11-476. ^' "Réponse de la défense à la demande de participation à la procédure d'appel relative à la « Third decision on the review of Laurent Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: » (ICC-02/11-01/11-454) déposée par la Représentante Légale des Victimes le 22 juillet 2013 (ICC- 02/11-01/11-460)", 21 August 2013, ICC-02/11-01/11-488 (0A4). " "Decision on the application by victims for participation in the appeal", ICC-02/11-01/11-491 (OA 4), p. 3. ^'^ "Requête aux fins de prorogation des délais déterminés par la Norme 64(5) du Règlement, de façon à ce qu'ils courent à partir de la rentrée judiciaire, fixée au lundi 12 août 2013", 16 July 2013, ICC-02/11- Ol/ll-456-Conf-Exp. '^^ "Decision on the 'Requête aux fins de prorogation des délais déterminés par la Norme 64(5) du Règlement, de façon à ce qu'ils courent à partir de la rentrée judiciaire, fixée au lundi 12 août 2013'", 18 July 2013, ICC-02/11-01/11-458-Conf-Exp.

text: No: ICC-02/11-01/11 OA 4 6/44

text: Rome Statute

text: , ordering President Gbagbo's continued detention (ICC-02/11-01-11-

text: 454)"" (hereinafter: "Document in Support of the Appeal").

text: On 26 August 2013, the Prosecutor filed her response (hereinafter:

text: "Prosecutor's Response to the Document in Support of the Appeal").

text: On 3 September 2013, the OPCV filed the "Observations of the Common Legal

text: Representative on the 'Document à l'appui de l'appel de la Défense interjeté à

text: rencontre de la « Third decision on the review of Laurent Gbagbo's detention

text: pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: » de la Chambre préliminaire I, décidant

text: du maintien en détention du Président Gbagbo (ICC-02/11-01/11-454)"'"^

text: (hereinafter: "Victims' Observations").

text: On 11 September 2013, Mr Gbagbo filed a response to the Victims'

text: Observations "^ (hereinafter: "Mr Gbagbo's Response to the Victims' Observations"),

text: submitting that they should be rejected.^^ The Prosecutor did not file a response.

text: m. 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". It is also recalled that an appellant, in his or her

text: '^ ICC-02/11-01/11-485-Conf-tENG (OA 4). ^^ "Prosecution's response to the Defence's 'Document à l'appui de l'appel de la Défense interjeté à rencontre de la « Third decision on the review of Laurent Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: » de la Chambre préliminaire I, décidant du maintien en détention du Président Gbagbo (ICC-02/11-01/11-454)'" ICC-02/11-01/11-490-Conf (OA 4). '^ ICC-02/11-01/11-497-Conf (OA 4). ^^ "Réponse aux observations présentées par la Représentante légale des victimes à propos de l'appel interjeté par la défense de la décision de la Chambre préliminaire I portant sur la « review of Laurent Gbagbo's detention pursuant to

text: article 60

text: (3) of the

text: Rome Statute

text: », décidant du maintien en détention du Président Gbagbo", ICC-02/11-01/11-501 (OA 4). ^^ Mr Gbagbo's Response to the Victims' Observations, para. 45. ^^ Prosecutor v. Jean-Pierre Bemba Gombo, "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- 01/05-01/08-631-Conf (OA 2) (hereinafter: "Bemba OA 2 Judgment"), para. 62, cited in Prosecutor v. Callixte Mbarushiinana, "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,

text: (OA) (hereinafter: "Mbarushimana OA Judgment"), para. 15.

text: No: ICC-02/11-01/11 OA 4 7/44

text: ^ document in support of the appeal, is not only obliged 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: IV. JV4ERITS

text: A. Arguments in relation to alleged lack of reasoning

text: As a preliminary issue, Mr Gbagbo submits that the "Pre-Trial Chamber should have paid greater attention to the need to provide reasoning for its decision",^^ particularly in light of the Gbagbo OA Judgment, in which, Mr Gbagbo argues, the majority of the Appeals Chamber "criticised the paucity of reasoning in the Single Judge's decision, issuing a clear warning to the Pre-Trial Chamber about the need to fulfil its obligation to demonstrate and provide reasoning".^"^ Mr Gbagbo further avers that the insufficiency of this reasoning in the Decision of 13 July 2012 means that the establishment of "changed circumstances" for the purposes of future article 60 (3) decisions is rendered problematic.^^

text: Mr Gbagbo submits in relation to the Impugned Decision that the concerns of the Appeals Chamber in relation to the Decision of 13 July 2012 "have proven to be prescient" insofar as the "Pre-Trial Chamber provide[s] little or no reasoning" for the Impugned Decision. He notes further that the Impugned Decision refers to the merits of the Decision of 13 July 2012, which, in his submission, the Appeals Chamber found to be insufficiently reasoned. ^^

text: The Prosecutor argues that Mr Gbagbo fails to demonstrate that the Pre-Trial Chamber's "reasoning and its decision were incorrect either in law or fact".^^ The Prosecutor also notes that the Decision of 13 July 2012 was in fact upheld by the

text: ^^ See Prosecutor's Response to the Document in Support of the Appeal, para. 17, referring, inter alia, to Prosecutor v. Jean-Pierre Bemba Gombo, "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,

text: (OA 3) (hereinafter: "Bemba O A 3 Judgment"), para. 102. ^^ Mbarushimana O A Judgment, para. 18. ^^ Document in Support of the Appeal, para. 15. ^"^ Document in Support of the Appeal, para. 16. ^^ Document in Support of the Appeal, paras 18-19. ^^ Document in Support of the Appeal, para. 19. ^^ Prosecutor's Response to the Document in Support of the Appeal, para. 22. No: ICC-02/11-01/11 OA 4 8/44 majority of the Appeals Chamber, and therefore Mr Gbagbo's arguments in relation to its reasoning constitute an attempt to "improperly litigate a final mling for the second time before the Appeals Chamber".^^

text: In addition to fully supporting the arguments advanced by the Prosecutor more generally, the Victims submit that "while having been criticised for a certain deficiency in reasoning, the Decision on Interim Release of 13 July 2012 was nevertheless upheld by the Appeals Chamber and now constitutes a valid legal basis for the Chamber to rely on"."*^ The Victims argue further that, insofar as the Pre-Trial Chamber was not required to determine the conditions under article 5S (!) de novo, but only the existence of "changed circumstances" under article 60 (3), "the Impugned Decision fiilly complies with the requirement of reasoning as interpreted by the intemational human rights jurispmdence"."**

text: In addressing this preliminary matter, the Appeals Chamber finds that Mr Gbagbo's overarching argument regarding the purportedly insufficient reasoning of the Decision of 13 July 2012 misrepresents the Appeals Chamber's findings. While the Appeals Chamber noted in the Gbagbo OA Judgment that the reasoning of the Single Judge in the Decision of 13 July 2012 was "relatively sparse", the Appeals Chamber nevertheless concluded that it did "not consider that the decision [wa]s so lacking in reasoning that it can be said that the Pre-Trial Chamber failed to comply with its obligation to provide a reasoned decision and therefore made an error of law"."*^ Therefore, this aspect of Mr Gbagbo's argument is dismissed.

text: The Appeals Chamber also rejects Mr Gbagbo's preliminary argument in relation to the purportedly insufficient reasoning of the Impugned Decision, on the basis that he fails to demonstrate an error of law in relation to the reasoning which materially affects the Impugned Decision. Mr Gbagbo merely asserts that the reasoning was insufficient, without substantiating this claim any further.

text: ^^ Prosecutor's Response to the Document in Support of the Appeal, para. 22. ^^ Victims' Observations, para. 24. "^ Victims' Observations, para. 33. "^^ Victims' Observations, para. 45. ^^ Gbagbo O A Judgment, para. 48. No: ICC-02/11-01/11 OA 4 9/44

text: 'S

text: B. First ground of appeal

text: As his first ground of appeal, Mr Gbagbo submits that the Pre-Trial Chamber erred in law by finding that the Adjournment Decision did not constitute changed circumstances requiring verification that the condition under

text: article 58

text: (1) (a) of

text: the Statute

text: is still met."*^

text: Relevant part of the Impugned Decision 26. In the Impugned Decision, when considering whether "changed circumstances" existed pursuant to

text: article 60

text: (3) of

text: the Statute

text: in relation to Mr Gbagbo's detention, the Pre-Trial Chamber referred to the argument contained in Mr Gbagbo's Submissions of 3 July 2013 that the Adjournment Decision constitutes a new circumstance affecting the grounds for his detention insofar as it "negat[ed] reasonable grounds to believe that Mr Gbagbo has committed a crime within the jurisdiction of the Court" under

text: article 58

text: (1) (a) of

text: the Statute

text: The Impugned Decision dismissed this argument, holding that it "inappropriately seeks to approximate a decision adjouming the hearing under

text: article 61

text: (7)(c) of

text: the Statute

text: to a decision declining to confirm the charges under

text: article 61

text: (7)(b) of

text: the Statute

text: ".^^ It noted that, under the latter provision, pursuant to

text: article 61

text: (10) of

text: the Statute

text: , the result of declining to confirm the charges is that the arrest warrant would cease to have effect,"*^ and that, in contrast, "no such provision exists with respect to adjournment of the hearing under article 61(7)(c)"."*^ Therefore, the Adjournment Decision did not "represent a final disposal of the merits of the case by the Pre-Trial Chamber, but is an intermediate procedural step [...]", and has no effect on the previous finding in relation to the warrant of arrest that there are "reasonable grounds to believe" that Mr Gbagbo committed a crime within the jurisdiction of the Court."*^

text: The Impugned Decision also recalled the standard of proof for findings under

text: article 58

text: (1) (a) of

text: the Statute

text: , which it found to be significantly lower than the

text: ^^ Document in Support of the Appeal, p. 7. '^ Impugned Decision, para. 34. ^^ Impugned Decision, para. 34. ^ Impugned Decision, para. 34. ^'^ Impugned Decision, para. 34. ^^ Impugned Decision, para. 35. ^^ Impugned Decision, para. 35. No: ICC-02/11-01/11 OA 4 10/44

text: Standard required for confirmation of charges under article 61 (7). On this basis, the Pre-Trial Chamber held that "a finding that the available evidence does not meet the evidentiary threshold of

text: article 61

text: (7) of

text: the Statute

text: does not imply that there is insufficient evidence for the purposes of

text: article 58

text: (1 )(a) of

text: the Statute

text: ".^^ The Impugned Decision therefore considered that the Adjournment Decision did not constitute "new circumstances" affecting the grounds of Mr Gbagbo's detention.^*

text: Mr Gbagbo's submissions before the Appeals Chamber 29. Mr Gbagbo argues, firstly, that the Pre-Trial Chamber erred in holding that the 57 Adjournment Decision did not constitute "changed circumstances", and secondly, that this error arose from a distortion of Mr Gbagbo's arguments on the issue.^^ In respect of his first argument, Mr Gbagbo cites the Gbagbo OA Judgment to emphasise that "in assessing whether the conditions under

text: article 58

text: (1) of

text: the Statute

text: continue to be met, the Chamber must address anew the issue of detention in light of the material placed before it and may sustain or modify its mling if it is satisfied that changed circumstances so require".^"* 30. Mr Gbagbo argues that more information was available to the Pre-Trial Chamber at the time of its rendering of the Impugned Decision than when the arrest warrant was issued, and that the Pre-Trial Chamber was therefore duty-bound to consider whether the conditions of

text: article 58

text: (1) (a) of

text: the Statute

text: continued to be met in light of this new information.^^ Specifically, Mr Gbagbo argues that the Pre-Trial Chamber's findings in the Adjournment Decision that there was a dearth of probative evidence to support the charges against Mr Gbagbo "are new factors which may affect the existence of reasonable grounds to believe that President Gbagbo committed a crime within the Court's jurisdiction",^^ and that it was therefore incumbent on the Chamber to verify de novo whether article 58 (1) (a) conditions continued to be met,^^ particularly given that it has never explicitly mied upon this issue, relying instead

text: ^^ Impugned Decision, para. 35. ^^ Impugned Decision, para. 37. ^'^ Document in Support of the Appeal, p. 7. ^^ Document in Support of the Appeal, p. 9. ^^ Document in Support of the Appeal, para. 20 (without emphasis of Document in Support of the Appeal), erroneously referring to Gbagbo OA Judgment, para. 23 {see, instead, para. 14). ^^ Document in Support of the Appeal, para. 21. ^^ Document in Support of the Appeal, para. 23. ^^ Document in Support of the Appeal, para. 26. No: ICC-02/11-01/11 OA 4 11/44

text: ^ upon the finding in the original Arrest Warrant Decision in relation to the existence of C O "reasonable grounds to believe". 31. Secondly, Mr Gbagbo argues that the Pre-Trial Chamber's alleged error of law in holding the Adjournment Decision not to be "changed circumstances" arose from a "distortion" of his arguments in relation to this issue. Mr Gbagbo avers that he never argued that the Adjournment Decision "bore the legal implication that article 58(l)(a) conditions were no longer met [...] [w]hat the Defence was saying in its submissions was that the substance of the Chamber's findings on the probative insufficiency of the evidence presented by the Prosecution in support of its allegations could constitute a lack of 'reasonable grounds to believe'".^^

text: The Prosecutor's submissions before the Appeals Chamber 32. The Prosecutor argues that Mr Gbagbo's arguments lack merit as, while attempting to cast the Chamber's findings as a legal error, they in fact constitute "a mere disagreement with the Chamber's conclusions".^^ The Prosecutor argues that the Pre-Trial Chamber correctly articulated the difference between the evidentiary thresholds of

text: articles 61

text: and

text: of

text: the Statute

text: , and therefore, the fact that the Prosecution had not proved its case under article 61 (7) does not mean that "the threshold under Article 58(l)(a) is automatically not met".^* She argues that an Adjournment Decision made pursuant to

text: article 61

text: (7) (c) of

text: the Statute

text: is not a decision declining to confirm charges pursuant to article 61 (7) (b), and that they are "decisions of a different character and have different implications".

text: The Prosecutor argues further that Mr Gbagbo fails to "identify any 'new fact' or change in facts relied upon in the prior decision on detention that would negate its validity or that the Chamber failed to consider", ^ and that his first ground of appeal should therefore be dismissed. She also avers that Mr Gbagbo's criticism that the Pre- Trial Chamber failed to mle on

text: article 58

text: (1) (a) of

text: the Statute

text: in the Decision of 13 July 2012 should also be similarly dismissed on the basis that the Appeals Chamber has already rejected these arguments in the Gbagbo O A Judgment in holding that the

text: ^^ Document in Support of the Appeal, para. 27. ^^ Document in Support of the Appeal, para. 31. ^ Prosecutor's Response to the Document in Support of the Appeal, para. 25. ^* Prosecutor's Response to the Document in Support of the Appeal, para. 25. ^'^ Prosecutor's Response to the Document in Support of the Appeal, para. 27. ^^ Prosecutor's Response to the Document in Support of the Appeal, para. 28. No: ICC-02/11-01/11 OA 4 12/44 factors underlying the original Arrest Warrant Decision may be the same as those for the decision under article 60 (2), and that the Pre-Trial Chamber may therefore refer to an arrest warrant decision "without this affecting the de novo character of the Chamber's decision".^"*

text: 4, Observations of the Victims 34. The Victims submit, in addition to fully supporting the arguments advanced by the Prosecutor,^^ that "a decision under

text: article 60

text: (3) of the

text: Rome Statute

text: requires only a review of a prior decision on detention and does not necessitate the re-evaluation of the conditions of article 58(1)".^^ The Victims argue that the only obligation on the Pre-Trial Chamber is to determine whether there are "changed circumstances"; where they are determined not to exist, "the conditions under

text: article 58

text: (1) of the

text: Rome Statute

text: should be deemed met without any need to be determined de novo'\^^ The Victims argue that Mr Gbagbo has failed to establish that the Adjournment Decision constitutes "changed circumstances" within the definition laid down by the Appeals Chamber,^^ and that his appeal on this issue should consequently be dismissed.^^

text: Mr Gbagbo's response to the observations of the Victims 35. Mr Gbagbo makes the overarching argument that the Victims' Observations should be dismissed because they are outside the authorised legal scope of their participation, insofar as they do not reflect the victims' personal interests^^ and merely 71 reiterate the Prosecutor's arguments. In relation to the Victims' Observations regarding "changed circumstances", Mr Gbagbo argues, inter alia, that the question around the sufficiency of the reasoning in the Decision of 13 July 2012 is pertinent to 77 his current review of detention. He avers further that, contrary to the Victims' Observations, it was indeed reasonable to submit that the Adjournment Decision could be considered to constitute "changed circumstances" that warranted the Pre- Trial Chamber to re-examine the factors concerning continued detention under article ^ Prosecutor's Response to the Document in Support of the Appeal, para. 28, referring to Gbagbo OA Judgment para. 27. ^^ Victims' Observations, para. 24. ^^ Victims' Observations, para. 26. ^^ Victims' Observations, para. 27. ^^ Victims' Observations, paras 34-36. ^^ Victims' Observations, p. 15. '^^ Mr Gbagbo's Response to the Victims' Observations, paras 12-15. ^^ Mr Gbagbo's Response to the Victims' Observations, paras 16-19. '^^ Mr Gbagbo's Response to the Victims' Observations, para. 22. No: ICC-02/11-01/11 OA 4 13/44

text: 58 (1), given the insufficiency of the evidence underpiiming the charges expressed therein. ^^

text: Determination by the Appeals Chamber 36. The principal question raised under the first ground of appeal is whether, in accordance with the review of detention provided for under

text: article 60

text: (3) of

text: the Statute

text: , the Adjournment Decision constituted "changed circumstances" requiring the Pre-Trial Chamber to assess de novo whether the available evidence against Mr Gbagbo still reached the threshold of article 58 (1) (a) ("reasonable grounds to believe that the person has committed a crime within the jurisdiction of the court"), so as to justify his ongoing detention. This question arises in light of the Pre-Trial Chamber's finding in the Adjournment Decision that the evidence against Mr Gbagbo did not meet the higher evidentiary threshold under

text: article 61

text: (7) of

text: the Statute

text: ("substantial grounds to believe that the person committed each of the crimes charged") for the purposes of confirming the charges against him.

text: The Appeals Chamber recalls that the Pre-Trial Chamber indicated in the Adjournment Decision "that the Prosecutor's evidence, viewed as a whole, although apparently insufficient, does not appear to be so lacking in relevance and probative value that it leaves the Chamber with no choice but to decline to confirm the charges"^^ thus indicating that, while the Prosecutor's evidence in relation to the charges against Mr Gbagbo was inadequate, there remained a degree of suspicion in relation to his alleged commission of crimes. The Pre-Trial Chamber further held that, "[djespite these difficulties in the evidentiary record of the Prosecutor", it "does not exclude that the Prosecutor might be able to present or collect further evidence" in relation to the alleged crimes.'^^ For these reasons, the Pre-Trial Chamber elected to adjoum the hearing on the confirmation of charges "[rjather than making a final determination on the merits at this time".

text: Furthermore, the Appeals Chamber notes that the Pre-Trial Chamber, in the Adjournment Decision, specifically adverted to the "progressively higher thresholds applicable in the course of the different stages of the proceedings", including the fact

text: '^^ Mr Gbagbo's Response to the Victims' Observations, paras 23-24. ^^ Adjournment Decision, para. 15. ^^ Adjournment Decision, para. 37. ^^ Adjournment Decision, para. 15. No: ICC-02/11-01/11 OA 4 14/44 that the evidentiary threshold for the confirmation of charges is higher than that required to issue a warrant of arrest.^^ This was reiterated in the Impugned Decision, in which the Pre-Trial Chamber noted that findings under

text: article 58

text: (1) (a) of

text: the Statute

text: "are made to a significantly lower standard of proof' than those under article 61 (7), and the fact that the available evidence did not meet the evidentiary threshold for article 67 (1) does not mean there was insufficient evidence for the purposes of

text: article 58

text: (1) (a) of

text: the Statute

text: The Appeals Chamber finds, therefore, that the Pre-Trial Chamber did advert in the Impugned Decision to the issue of whether the sufficiency of the evidence 7Q affected the condition under

text: article 58

text: (1) (a) of

text: the Statute

text: . This is evidenced by the Pre-Trial Chamber's analysis of the different evidentiary thresholds under

text: articles 58

text: (1) (a) and 67 (1) of

text: the Statute

text: and its decision to adjoum the confirmation hearing rather than decline to confirm the charges. In these circumstances there was no obligation for the Pre-Trial Chamber to assess anew whether there were reasonable grounds to believe that Mr Gbagbo committed a crime within the jurisdiction of the Court. 40. The Appeals Chamber recalls that "changed circumstances" have been found to exist where there is a "change in some or all of the facts underlying a previous decision on detention, or a new fact satisfying a Chamber that a modification of its prior mling is necessary". Where no changed circumstances are found to exist, "the o 1 Chamber is not required to further review the mling on release or detention". Further, as stated in the Bemba OA 4 Judgment, when conducting periodic review, given that the mling on detention may be subsequently modified under

text: article 60

text: (3) of

text: the Statute

text: , if "changed circumstances so require", it is necessary to interpret the "raling on detention" as being the initial decision made under article 60 (2) of the

text: ''''Adjournment Decision, para. 17. ^^ Impugned Decision, para. 35. ^^ Adjournment Decision, para. 37. ^"^ Bemba OA 2 Judgment, para. 60. ^^ Prosecutor v. Jean-Pierre Bemba Gombo, "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 'Requête de Mise en liberté provisoire de M. Jean-Pierre Bemba Gombo"", ICC- 01/05-01/08-215l-Conf(OA 10), 5 March 2012 (hereinafter: "Bemba OA 10 Judgment"), para. 1. No: ICC-02/11-01/11 OA 4 15/44

text: Statute as well as any potential subsequent modifications made to that decision under article 60 (3).^^

text: The Appeals Chamber notes that it was the Pre-Trial Chamber, in the same composition, that rendered the Adjournment Decision mere weeks before the Impugned Decision, and elected not to decline to confirm the charges under article 61 (7) (b). If it believed that "reasonable grounds" no longer existed, then it would have been required at this point to decline to confirm the charges, and it explicitly rejected o o this course of action. In light of this, the Appeals Chamber finds that it was open for the Pre-Trial Chamber to find that no changed circumstances existed , thus obviating any requirement for a de novo review of article 58 (1) (a) factors. The Appeals Chamber has previously held that it "will intervene in the findings of the Pre-Trial Chamber only where clear errors of law, fact or procedure are shown to exist and vitiate the Impugned Decision".^"* In the instant case, the Appeals Chamber finds no error in the approach of the Pre-Trial Chamber, and dismisses Mr Gbagbo's arguments under this ground of appeal.

text: C. Second Ground of Appeal

text: Mr Gbagbo's second ground of appeal is that the Pre-Trial Chamber erred in law by not examining facts pertaining to each item of evidence previously used to justify detention and thereby declined to assess whether there were "changed circumstances" for the purposes of

text: article 60

text: (3) of

text: the Statute

text: 1, Relevant part of the Impugned Decision 43. At the outset, it is observed that the Pre-Trial Chamber outlined in detail the statutory provisions and jurispradence upon which it relied in relation to assessing

text: ^^ Prosecutor v. Jean-Pierre Bemba Gombo, "Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 28 July 2010 entitled 'Decision on the review of the detention of Mr Jean-Pierre Bemba Gombo pursuant to Rule 118(2) of the Rules of Procedure and Evidence of Procedure and Evidence'",

text: (OA 4) (hereinafter; ''Bemba OA 4 Judgment"), para. 46. See also Prosecutor v. Thomas Lubanga Dyilo, "Judgment on the appeal of Mr. Thomas Lubanga Dyilo against the decision of Pre-Trial Chamber I entitled 'Décision sur la demande de mise en liberté proviso ire de Thomas Lubanga Dyilo'", 13 February 2007,

text: (OA 7), para. 94. ^^ Adjournment Decision, paras 15; 37; see also Impugned Decision, paras 34-35. ^^ Bemba O A 2 Judgment, para. 62, cited in Mbarushimana OA Judgment, para. 15. ^^ Document in Support of the Appeal, p. 10. No: ICC-02/11-01/11 OA 4 16/44

text: "changed circumstances" pursuant to

text: article 60

text: (3) of

text: the Statute

text: .^^ In examining the facts pertaining to each item of evidence previously used to justify detention (for example, in relation to existence of a network of Mr Gbagbo's supporters), the Pre- Trial Chamber concluded that there were no changed circumstances that could affect the factors underpinning detention under article 58 (1) (b) (i) to (iii).^^

text: In examining whether "changed circumstances" existed pursuant to article 60 (3) in the context of article 58 (1) (b), the Pre-Trial Chamber referred to the Decisions of 13 July 2012 and 12 November 2012, noting that it was previously held that the existence of a "large and well-organised network of political supporters of Mr Gbagbo" posed a risk that Mr Gbagbo may use the means of his support network in order to "abscond, obstmct the investigation or continue with the commission of o o crimes within the jurisdiction of the Court". The Pre-Trial Chamber, referring to its Decision of 12 November 2012, recalled that the level of military and political organisation of pro-Gbagbo groups had been strengthened in the preceding months, increasing the risks under article 58 (1) (b) (i)-(iii) in relation to Mr Gbagbo.^^ These circumstances were held to be unchanged in the most recent article 60 (3) decision.^^ 45. In assessing the current situation in relation to the pro-Gbagbo network, the Pre- Trial Chamber relied upon the findings of the "Final Report of the Group of Experts on Côte d'Ivoire pursuant to paragraph 16 of Security Council resolution 2045 (2012)"^* (hereinafter: "Final Report"), holding that it provided "sufficientiy detailed information which can be relied upon for the purpose of determining, in line with

text: article 58

text: (1 )(b) of

text: the Statute

text: , whether '[t]he arrest of the person appears necessary'".^^ The Pre-Trial Chamber acknowledged that the Final Report concluded that some of the military activities and operational capacity of the pro-Gbagbo groups had lessened,^^ but held that, nonetheless, the capacity of the network of Mr Gbagbo's

text: ^^ Impugned Decision, paras 26-32. ^^ Impugned Decision, para. 44. Impugned Decision, para. 38, referring to Decision of 13 July 2012, paras 60-62, 65, 69. ^^ Impugned Decision, para. 38, referring to Decision of 12 November 2012, para. 59. ^ Impugned Decision, para. 38, referring to Decision of 12 March 2013, para. 39. ^^ Impugned Decision, paras 40-42, referring to Annex A of the "Prosecutor's submissions of 3 July 2013 (ICC-02/11-01/11-445-AnxA) - "Final report of the Group of Experts on Côte d'Ivoire pursuant to paragraph 16 of Security Council resolution 2045 (2012), ICC-02/11-01/11-445-AnxA). Also contained in [REDACTED]. ^^ Impugned Decision, para. 42. ^.^ Impugned Decision, para. 41. No: ICC-02/11-01/11 OA 4 17/44 supporters has not been reduced to such an extent that the risks identified in the Decision of 13 July 2012 no longer existed

text: Mr Gbagbo's submissions before the Appeals Chamber 46. Mr Gbagbo argues that the Pre-Trial Chamber erred in law by failing to perform "a systematic review of each of the circumstances which together had provided the basis for the detention decision, in order to determine whether any of these had changed".^^ He avers that the Pre-Trial Chamber relied on mere "suppositions" to find that article 58 (1) (b) conditions were met "ia one fell swoop",^^ focusing on the finding that the ongoing existence of a pro-Gbagbo network meant that there existed "at one and the same time, a risk of abscondment, pressure on witnesses etc.".^^ Mr Gbagbo also argues that the Pre-Trial Chamber merely adverted to earlier decisions in relation to his detention rather than analysing the current situation or the arguments of 98 the parties. 47. Mr Gbagbo argues further that it is impossible to demonstrate changed circumstances in relation to article 58 (1) (b) (ii) factors in the absence of a definition of the "future crimes" the Impugned Decision alludes to, "since the Pre-Trial Chamber's findings on the risk of obstmction to the investigation do not rely on any concrete evidence but instead on an abstract supposition", making it impossible to show changed circumstances.^^ He also argues that the Pre-Trial Chamber failed in 1 on any event to revisit the alleged risks under article 58 (1) (b) (ii). Mr Gbagbo submits further that the Pre-Trial Chamber failed to adequately examine current article 58 (1) (b) (iii) risks, which he avers are tainted by initial vagueness of the Single Judge's decision on this issue.*^* 3, The Prosecutor's submissions before the Appeals Chamber 48. The Prosecutor argues that Mr Gbagbo has failed to establish any error of law, recalling that decisions under

text: article 60

text: (3) of

text: the Statute

text: are made using a different

text: ^"^ Impugned Decision, para. 41. ^^ Document in Support of the Appeal, para. 38. ^^ Document in Support of the Appeal, para. 35. ^^ Document in Support of the Appeal, para. 34. ^^ Document in Support of the Appeal, para. 34. ^^ Document in Support of the Appeal, para. 40. ^^ Document in Support of the Appeal, para. 39. ^^^ Document in Support of the Appeal, para. 41. No: ICC-02/11-01/11 OA 4 18/44

text: Standard to those under article 60 (2).*^^ She argues that, on this basis, the Pre-Trial Chamber is not obliged to "establish that each one of the factors underpiiming the original decision on detention is met as this would entail a decision anew, which is only pertinent to decisions under Article 60(2)". The Prosecutor argues further that the Pre-Trial Chamber supported its conclusions in relation to whether the conditions under article 58 (1) (b) are met with evidence presented by the parties (such as that contained in the Final Report) rather than mere "abstract statements or assumptions".^^"* The Prosecutor avers that the Pre-Trial Chamber's conclusion that there were no changed circumstances which would affect the grounds underpinning detention under article 58 (1) (b) (i) to (iii) was also justified in light of the Appeals Chamber jurispmdence that it is the "possibility, not the inevitability, of a future occurrence"*^^ that underpins the notion of risk in relation to article 58 (1) (b) (i) to (iii).

text: 4, Observations of the Victims 49. The Victims did not make observations specifically relating to this ground of appeal.

text: Determination by the Appeals Chamber 50. The principal issue under the second ground of appeal is whether the Pre-Trial Chamber should have examined anew each item of evidence previously used to justify Mr Gbagbo's detention in order to assess whether there existed "changed circumstances", instead of relying on the factors cited in previous decisions on his continued detention in light of the fresh information before it.

text: In the Gbagbo O A Judgment the Appeals Chamber recalled that there is "a clear difference between the standard of a decision under

text: article 60

text: (2) of

text: the Statute

text: , and under

text: article 60

text: (3) of

text: the Statute

text: ".*^^ While a review of detention pursuant to article 60 (2) entails a decision de novo in which the Pre-Trial Chamber must decide whether the conditions of aiticle 58 (1) are met, the Pre-Trial Chamber may modify its mling

text: ^°^ Prosecutor's Response to the Document in Support of the Appeal, para. 31. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 31. ^^ Prosecutor's Response to the Document in Support of the Appeal, para. 32. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 33. ^^ Gbagbo OA Judgment, para. 23. No: ICC-02/11-01/11 OA 4 19/44 on release or detention under article 60 (3) if "it is satisfied that changed circumstances so require". *^^ The Appeals Chamber clarified further that:

text: If there are changed circumstances, the Pre-Trial or Trial Chamber will need to consider their impact on the factors that formed the basis for the decision to keep the person in detention. If, however, the Pre-Trial or Trial Chamber finds that there are no changed circumstances, that Chamber is not required to fiirther review the mling on release or detention. *^^ 52. Indeed, the Appeals Chamber has previously held that "[t]he Chamber does not have to enter findings on the circumstances already decided upon in the mling on 1 no detention" in the absence of changed circumstances, given that "the scope of the review carried out in reaching a decision under article 60 (3) is potentially much more limited than that to be carried out in reaching a decision under

text: article 60

text: (2) of

text: the Statute

text: ".**^ 53. In light of this jurispmdence, the Appeals Chamber finds that Mr Gbagbo's argument that the Pre-Trial Chamber erred in failing to perform "a systematic review of each of the circumstances which together had provided the basis for the detention decision, in order to determine whether any of these had changed", *** distorts the manner m which reviews of detention pursuant to

text: article 60

text: (3) of

text: the Statute

text: should be conducted. It is first for the Pre-Trial Chamber to determine whether changed circumstances exist to warrant the disturbing of a previous mling on detention, rather than addressing each factor underpinning detention indide novo maimer to "determine whether any of these had changed".**^

text: On this basis, the Appeals Chamber finds that the Pre-Trial Chamber did not err in finding that there were no changed circumstances with regard to the existence of a network of Mr Gbabgo's supporters that would affect the grounds justifying detention under article 58 (1) (b) (i) to (iii). The Pre-Trial Chamber explicitly adverted to the evidence put forward by the parties, referring to the findings of the Mid-Term Report of the Group of Experts submitted in accordance with paragraph 16 of Security

text: ^^^ Gbagbo OA Judgment, para. 23. ^^^ Bemba OA 10 Judgment, para. 1, cited in Gbagbo O A Judgment, para. 23. ^^ Bemba OA 4 Judgment, para. 53. ^^^ Impugned Decision, para. 31, citing Gbagbo OA Judgment, para. 24. ^^^ Document in Support of the Appeal, para. 38. ^^^ Document in Support of the Appeal, para. 38. No: ICC-02/11-01/11 OA 4 20/44

text: Council resolution 2045 (2012),**^ as relied upon hi the Decision of 12 November 2012 and the Decision of 12 March 2013, in comparison with those contained in the Final Report, which is dated 17 April 2013. For example, it held that the risks previously identified in these decisions still exist in relation to a pro-Gbagbo network, based on the evidence before it, as of the issuance of the Final Report, that "[tjhese groups have the capacity to conduct military operations with weapons and related material obtained in violation of the sanctions regime and to recmit combatants, inside and outside Côte d'Ivoire".**"*

text: The Appeals Chamber notes further that the arguments of Mr Gbagbo to a large extent criticise the purported lack of reasoning and specificity in previous decisions on his detention. These decisions, while forming the basis for the current assessment of his detention, are not under review in the present appeal. Accordingly, Mr Gbagbo's arguments in this connection are dismissed in limine.

text: For the foregoing reasons, the Appeals Chamber dismisses Mr Gbagbo's second ground of appeal.

text: D. Third and Sixth Grounds of Appeal

text: Mr Gbagbo's third ground of appeal is that the Pre-Trial Chamber erred in law by declining to assess the probative value of the Final Report, despite Mr Gbagbo's request,**^ while his sixth ground of appeal is that the Pre-Trial Chamber committed an error of fact by relying on the findings of the Final Report, despite the report's probative value being called into question.**^

text: Relevant procedural context and part of the Impugned Decision 58. In the Impugned Decision, the Pre-Trial Chamber noted that Mr Gbagbo listed a number of factors in his Submissions of 3 July 2013 which, in his view, call into question the reliability of the work of the Group of Experts who produced the Final

text: ^^^ See "Registration into the record of the case of materials presented during the hearings held in open and closed session on 30 October 2012 (ICC-02/11-01/1 l-HNE-5 to ICC-02/11-01/1 l-HNE-14- Conf)", 1 November 2012, ICC-02/11-01/11-285 ("Rapport de mi-mandat du Groupe d'expert sur la Côte d'Ivoire en application du paragraphe 16 de la résolution 2045 (2012) du Conseil de sécurité, 15 octobre 2012", ICC-02/11-01/11-285-Anxl) (hereinafter: "Mid-Term Report"). ^^^ Impugned Decision, para. 41, referring to Final Report, para. 19 ^^^ Document in Support of the Appeal, p. 13. ^^^ Document in Support of the Appeal, p. 17. No: ICC-02/11-01/11 OA 4 21/44

text: Report and the Mid-Term Report relied upon by the Single Judge. **^ Firstly, Mr Gbagbo argued that the Final Report differs markedly from the Mid-Term Report insofar as a number of accusations against pro-Gbagbo elements have been dropped, and the thmst of the Final Report levels responsibility for the situation in Côte d'Ivoire at the Ouattara regime, rather than Mr Gbagbo's supporters.**^ It is noted in this coimection that the Mid-Term Report was relied upon by the Single Judge in her Decision of 12 November 2012 in relation to the first article 60 (3) review of Mr Gbagbo's detention, as well as in the Decision of 12 March 2013 in relation to the second article 60 (3) review. In the former decision, the Single Judge relied on the Mid-Term Report to establish, inter alia, "the existence and activities of a network of Mr Gbagbo's supporters who appear to be raising funds in Europe in his support"*^^ and that "the network of Mr Gbagbo's supporters is well organized and capable of 170 conducting military operations". In the Decision of 12 March 2013, the Single Judge referred to the findings of the Decision of 12 November 2012, including those based on the Mid-Term Report, to find that no changed circumstances existed for the purposes of

text: article 60

text: (3) of

text: the Statute

text: .*^* 59. Notwithstanding Mr Gbagbo's Submissions of 3 July 2013 questioning the reliability of the Group of Experts, the Pre-Tnal Chamber held in the Impugned Decision that Mr Gbagbo was merely seeking to challenge a previous fmding of the 177 Single Judge by "arguing that the evidentiary basis for it was unsound". On this basis, the Pre-Trial Chamber elected not to address these arguments,*^^ in light of the

text: *^^ Impugned Decision, para. 42. ^^^ Mr Gbagbo's Submissions of 3 July 2013, para. 47. ^^^ Decision of 12 November 2012, para. 48, referring to Mid-Term Report (ICC-02/11-01/11-285- Anxl), paras 132-133. ^^^ Decision of 12 November 2012, para. 55, referring to Mid-Term Report, para. 31 and pp. 108-109. ^^^ Decision of 12 March 2013, para. 35, referring to para. 55 of the Decision of 12 November 2012: "[h]igh-ranking representatives of Mr Gbagbo's former regime, members of militias such as the Jeunes Patriotes and officials of the armed and security forces, took refuge in neighbouring countries like Benin, Ghana, Liberia and Togo after the post-electoral violence in Côte d'Ivoire. According to the same document, these groups of exiled representatives of the former Ivorian regime are suspected of organising and financing military operations in Côte d'Ivoire, recruiting mercenaries and purchasing weapons. The available material alleges specifically that a meeting took place in Takoradi, Ghana, on 12 July 2012, in which supporters of Mr Gbagbo's former regime discussed the establishment of a joint action plan to regain power in Côte d'Ivoire. The material available further suggests that the network of Mr Gbagbo's supporters is well organized and capable of conducting military operations. The report also lists operations recently launched on Ivorian territory which could be attributable to the pro- Gbagbo network referred to above". ^^^ Impugned Decision, para. 40. ^"^ Impugned Decision, para. 40.

text: No: ICC-02/11-01/11 OA 4 22/44

text: Appeals Chamber's finding that "[t]he Chamber does not have to enter findings on the circumstances already decided upon in the mling on detention" and does not have to "entertain submissions by the detained person that merely repeat arguments that the Chamber has already addressed in previous decisions".*^"*

text: Secondly, the Pre-Trial Chamber in the Impugned Decision determined that the Final Report itself could, in fact, be relied upon, finding that, "bearing in mind the nature of the present exercise and the principles applicable to factual findings, [...] the Group of Experts Final Report provides sufficiently detailed information which can be relied upon for the purpose of determining, in line with article 58(l)(b) of the 17S Statute, whether "[t]he arrest of the person appears necessary". 2. Mr Gbagbo's submissions before the Appeals Chamber 61. Mr Gbagbo advances two strands of argument in relation to the third ground of appeal: (i) he challenges the finding in the Impugned Decision that the arguments he advances in relation to the Group of Experts Reports do not constitute "changed circumstances",^^^ and (ii) he challenges the Impugned Decision's finding that the reports satisfy the standard of proof applicable to the present proceedings.

text: In relation to the first strand of his argument, Mr Gbagbo contends that the Pre- Trial Chamber, in dismissing his arguments about the unreliability of the Group of Experts Reports, was overly restrictive in its interpretation of "changed circumstances", and erred in law in failing to assess the new evidence that Mr Gbagbo had provided for this purpose. He argues that evidence he puts forward points to the Group of Experts' alleged lack of credibility and the fact that some of their findings are devoid of factual foundation. Therefore, in Mr Gbagbo's submission, this should have been constmed as "changed circumstances" for the purposes of

text: article 60

text: (3) of

text: the Statute

text: , particularly in light of the fact that "their report is practically the sole source relied upon by both the Prosecution and the Single Judge, as well as, 17R subsequently, the Chamber itself in refusing to grant provisional release".

text: ^^"^ Impugned Decision, para. 40, erroneously referring to para. 32 instead of para. 31 of the Impugned Decision. See Bemba OA 4 Judgment, para. 53.). ^^^ Impugned Decision, para. 42. ^^^ Document in Support of the Appeal, p. 13. ^^^ Document in Support of the Appeal, p. 14. ^^^ Document in Support of the Appeal, para. 4 a. 48. No: ICC-02/11-01/11 OA 4 23/44

text: Mr Gbagbo avers in relation to the second strand of his argument that the Pre- Trial Chamber failed to provide any reasons for why it dismissed these arguments, instead stating that it had determined that the Group of Experts Final Report was sufficiently probative in light of the "principles applicable to factual findings" articulated in its 13 July 2012 Decision. *^^ Mr Gbagbo argues that the existence of such ill-defined "principles" does not, in and of itself, justify the dismissal of the 1 '^0 Defence arguments, and that the Pre-Trial Chamber failed to explain how they were applied in the context of the Impugned Decision.*'^* He submits that there is an absence of "objective criteria concerning the required standard of proof', or reasoning from the Judges, in relation to the Final Report. *^'^ 64. In relation to his sixth ground of appeal, Mr Gbagbo argues that the Pre-Trial Chamber "manifestly erred in fact by relying on the expert report to justify the contiaued detention of President Gbagbo, having refused to consider the evidence presented by the Defence questioning the veracity and therefore the probative value of 1 o o this report (see Ground 3)". He argues that, on the basis of this evidence (for example, Mr Gbagbo's questioning of the qualifications of the report's authors and its use of anonymous sources), the Pre-Trial Chamber should have dismissed the report. *^"^ He avers that the Pre-Trial Chamber ought to have "reviewed the accusations that were discarded between tlie midterm report and the final report", and submits that the Pre-Trial Chamber's findings in relation to the Final Report were infected by the Single Judge's uncritical acceptance of the Mid-Term Report, the findings of whom the Pre-Trial Chamber adverted in the Impugned Decision. 3. The Prosecutor's submissions before the Appeals Chamber 65. The Prosecutor argues that Mr Gbagbo's third ground of appeal does not amount to a legal error but rather shows a mere disagreement with the Pre-Trial Chamber's conclusion that the Final Report could be relied upon to determine whether his detention is justified under

text: article 58

text: (1) (b) of

text: the Statute

text: . She argues

text: ^^^ Impugned Decision, para. 42. ^^^ Document in Support of the Appeal, para. 50. ^^' Document in Support of the Appeal, para. 51. ^^^ Document in Support of the Appeal, para. 53. ^^^ Document in Support of the Appeal, para. 66. ^^^ Document in Support of the Appeal, para. 66. ^^^ Document in Support of the Appeal, para. 71. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 37. No: ICC-02/11-01/11 OA 4 24/44

text: • § further that, in decrying the Pre-Trial Chamber's reliance on the "principles applicable to factual findings", Mr Gbagbo fails to identify what the correct legal standard should be. The Prosecutor avers that the Pre-Trial Chamber did, in fact consider the factors which would arguably undermine the reliability of the Final Report, *'^^ with reference to the applicable standard by which it assessed the evidence before it.*^^ She argues that, therefore, the Pre-Trial Chamber did not err in concluding that the Final Report could be relied upon "to establish jointly, with other factors, the necessity of the Appellant's arrest pursuant to Article 58(l)(b)".*^^

text: The Prosecutor argues that Mr Gbagbo's sixth ground of appeal also "fails to establish that the Chamber's reliance on the Final Report is unreasonable".*"** She notes that the Pre-Trial Chamber considered and dismissed Mr Gbagbo's submissions in relation to the lack of reliability and probative value of the Final Report.*"*^ The Prosecutor reiterates that the Chamber carefully considered the differences between the Mid-Term Report and the Final Report, concluding "that the network of the Appellant's supporters was in existence and still active, notwithstanding a reduction of its activity".*"*^ She argues that the Pre-Trial Chamber therefore did not err in finding no change of circumstances in relation to the existence of a network of Mr Gbagbo's supporters.*"*"*

text: Observations of the Victims 67. The Victims submit that the Final Report does not constitute a "changed circumstance" for the purposes of article 60 (3) "due to a lack of any bearing on the conditions under article 58(1)".*^^ The Victims concur with the Pre-Trial Chamber's standard in assessing changed circumstances that "the existence of new or additional evidence for the same facts does not, as such, constitute a changed circumstance,

text: ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 36. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 38, erroneously referring to ICC-02/11-01/11-466-Conf, paras 46-47 {see instead ICC-02/11-01/11-446-Conf). ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 38, referring to Decision of 13 July 2012, para. 48. ^^ Prosecutor's Response to the Document in Support of the Appeal, para. 39. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 48. ^"^^ Prosecutor's Response to the Document in Support of the Appeal, para. 48, referring to her arguments presented in relation to Mr Gbagbo's third ground of appeal at paras 36-39. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 49, referring to Impugned Decision, paras 41-42. ^^ Prosecutor's Response to the Document in Support of the Appeal, para. 49. ^^^ Victims' Observations, para. 37. No: ICC-02/11-01/11 OA 4 25/44 insofar as it does not establish previously unknown facts that could amount to changed circumstances"

text: Determination by the Appeals Chamber 68. In relation to his third ground of appeal, the Appeals Chamber finds that, to the extent that he argues that the Pre-Trial Chamber should have re-considered its previous findings that were based on the Group of Experts' Mid-Term Report, Mr Gbagbo's Submissions of 3 July 2013 did not contain "new evidence", as he is now claiming on appeal. *"^^ Rather, he raised before the Pre-Trial Chamber a number of arguments, generally challenging the quality and reliability of the Group of Experts' work. The majority of these arguments (for instance, the provenance of the experts and their purported lack of familiarity with the situation in Côte d'Ivoire) could have been raised in relation to the Decision of 12 November 2012 or of 12 March 2013, which relied upon the findings of the Mid-Term Report. The Appeals Chamber finds that, without more, the mere raising of new arguments does not amount to "changed circumstances" that would have required the Pre-Trial Chamber to reconsider its previous reliance on the Mid-Term Report.

text: In relation to the second strand of Mr Gbagbo's arguments that is directed at the Final Report itself, being that the Group of Experts relied on very little documentary 148 evidence in drawing their ultimate conclusions, the Appeals Chamber finds no error of law on the part of the Pre-Trial Chamber in failing to analyse the probative value of the Final Report with reference to an appropriate standard. The Pre-Trial Chamber did, in fact, consider the factors which may have impacted on the reliability of the Final Report,* with reference to the applicable standard by which it assessed the evidence before it.*^^

text: ^^ Victims' Observations, para. 37, referring to Impugned Decision, para. 40. ^^'^ See Document in Support of the Appeal, para. 48. •^^ Mr Gbagbo's Submissions of 3 July 2013, para. 47. '"^^ Impugned Decision, para. 42, referring to Mr Gbagbo's Submissions of 3 July 2013, paras 46-47. ^^^ Impugned Decision, para. 42, referring to the principles applicable to factual findings" in its Decision of 13 July 2012 at para. 48 - "[s]pecifically with respect to

text: article 58

text: (l)(b)(i) of

text: the Statute

text: , the Appeals Chamber has also held that 'any determination by a Pre-Trial Chamber of whether or not a suspect is likely to abscond necessarily involves an element of prediction'. The Appeals Chamber has further held that 'the apparent necessity of continued detention in order to ensure the detainee's appearance at trial does not necessarily have to be established on the basis of one factor taken in isolation. It may also be established on the basis of an analysis of all relevant factors taken together'" (footnotes omitted). No: ICC-02/11-01/11 OA 4 26/44

text: In sum, the Appeals Chamber finds that the Pre-Trial Chamber did not err in concluding that Mr Gbagbo's arguments advanced in relation to the work of the Group of Experts did not constitute "changed circumstances", nor did it err in holding that it could rely upon the Final Report to provide "sufficiently detailed information" for the purposes of article 58 (1) (b) considerations. Therefore, Mr Gbagbo's third ground of appeal is dismissed.

text: The Appeals Chamber finds that Mr Gbagbo's sixth ground of appeal should likewise be dismissed. It merely rehearses his arguments in relation to his third ground of appeal; the difference between an allegation of an error on the part of the Pre-Trial Chamber in declining to assess the probity^ of the evidence supporting the Final Report, and an allegation of an error in relation to a subsequent reliance on the said report, is negligible. The sixth ground of appeal is therefore dismissed in limine.

text: E. Fourth and Fifth Grounds of Appeal

text: Mr Gbagbo's fourth ground of appeal is that the Pre-Trial Chamber committed an error of fact in considering that the publication of the Final Report did not constitute a change of circumstances requiring a review of article 58 (1) (b) conditions.*^* His fifth ground of appeal is that the Chamber committed an error of fact by refusing to consider the links between the Prosecution and the Group of 1 c r y Experts " as well as an error of law in failing to clarify this issue upon Mr Gbagbo's request. 1. Relevant part of the Impugned Decision 73. In the Impugned Decision, the Pre-Trial Chamber referred to the contents of the Final Report as being conclusive of the fact that the capacity of the network of Mr Gbagbo's supporters, although somewhat diminished, still reflected the risks identified in the Decision of 13 July 2012.*^"* It did not consider the fact of the publication of the final report itself in terms of a "changed circumstances" analysis. Nor did the Pre-Trial Chamber consider it necessary to re-visit its previous findings

text: ^^^ Document in Support of the Appeal, p. 15. ^^^ Document in Support of the Appeal, p. 15. 153 Document in Support of the Appeal, para. 65. ^^"^ Impugned Decision, para. 41. No: ICC-02/11-01/11 OA 4 27/44 that were based on the Mid-Term Report and assess whether those findings are supported in the Final Report.

text: Furthermore, as noted in the foregoing section, the Pre-Trial Chamber referred in the Impugned Decision to the list of factors raised by Mr Gbagbo "which in [his] submission militate against reliance on the work of the Group of Experts who produced the report in question and a previous report relied upon by the Single Judge".*^^ One of these factors raised in Mr Gbagbo's Submissions of 3 July 2013 was the allegation that an improper link existed between the Office of the Prosecutor and the Group of Experts. *^^ The Impugned Decision did not advert specifically to this issue, save for footnoting this reference to Mr Gbagbo's Submissions of 3 July 2013, the substance of which it dismissed. *^^

text: Mr Gbagbo's submissions before the Appeals Chamber 75. In relation to his fourth ground of appeal, Mr Gbagbo argues that the Pre-Trial Chamber erred in fact by failing to characterise the publication of the Final Report as "changed circumstances". He submits that, because all of the Single Judge's findings were based on the Mid-Term Report, "it was for the Pre-Trial Chamber to review the findings and test them systematically in the light of the final report". *^^

text: In relation to his fifth ground of appeal, Mr Gbagbo argues that "there are established links between the group of experts and the Prosecution".*^^ He argues, inter alia, that the information regarding the alleged existence of a pro-Gbagbo network and Mr Gbagbo's access to funds, upon which Mr Gbagbo's article 58 (1) (b) risks were initially assessed, was sourced not from "the supposedly neutral and objective group of experts", but from material that "originated from the Office of the

text: ^^^ Impugned Decision, para. 42, footnote 55, referring to Mr Gbagbo's Submissions of 3 July 2013, paras 46-47. ^^^ Mr Gbagbo's Submissions of 3 July 2013, para. 47, stating that "[t]he ICC Prosecutor seems to have provided pieces of information to the experts, who made use of them in their report. Yet the Pre-Trial Chamber's 3 June 2013 decision casts doubt on the probative value of the Prosecution evidence. Further still, the Prosecution drew on the experts' work to challenge President Gbagbo's release, without ever informing the Chamber and the Defence that it had held meetings with the experts and that information was exchanged. It behoves the Prosecution to illuminate the Chamber and the Defence in this connection" (footnotes omitted). ^^^ Impugned Decision, para. 42. ^^^ Document in Support of the Appeal para. 56. ^^^ Document in Support of the Appeal, para. 57. No: ICC-02/11.01/11 OA 4 28/44

text: Prosecutor". *^^ He argues that the work of the Group of Experts is therefore unreliable, impugning the Final Report's quality as a credible source,*^* and submits that the Prosecutor "misled both the Chamber and the Defence" by failing to reveal these links.*^^

text: Mr Gbagbo argues specifically that the findings in the Final Report are tainted by the fact that it contains a duplication of the Document Containing the Charges (hereinafter: "DCC") submitted by the Prosecutor on 17 January 2013*^^ which was considered insufficient for the purposes of confimüng the charges against Mr Gbagbo.*^"* He argues that the majority of the Group of Experts' assertions repeat corresponding paragraphs from the DCC*^^ and that they relied on the statements of high-ranking officers of former Ivorian security forces, who are also Prosecution witnesses, and who they could not have met without the Prosecutor's consent.*^^ Mr Gbagbo submits, that, on this basis, the Pre-Trial Chamber erred in law by failing to clarify whether an improper link existed between the Office of the Prosecutor and the Group of Experts. *^^

text: The Prosecutor's submissions before the Appeals Chamber 78. The Prosecutor argues that Mr Gbagbo's submissions in relation to his fourth ground of appeal misinterpret the jurispradence pertaining to "changed circumstances", insofar as article 60 (3) requires "either a change in some or all of the facts underlying a previous decision on detention, or a new fact satisfying a Chamber I z:o that a modification of its prior raling is necessary". She submits that the mere fact of the publication of the Final Report fails this test,*^^ and that, in any event, the Pre- Trial Chamber engaged in a factual comparison between the Mid-Term Report and the Fiaal Report, drawing its conclusions accordingly. The Prosecutor submits that no

text: ^^^ Document in Support of the Appeal, para. 58. ^^^ Document in Support of the Appeal, para. 58. ^^" Document in Support of the Appeal, paras 58-60. '^-^"Amended Document Containing the Charges", 17 January 2013, ICC-02/11-01/11-357-Conf-AnxltENG. ' ^ Document in Support of the Appeal, para. 61, referring to Adjoumment Decision, para. 15. ^^^ Document in Support of the Appeal, para. 63. *^^ Document in Support of the Appeal, para. 62. ^^^ Document in Support of the Appeal, para. 65. ^^^ Prosecutor's Response to the Document in Support of the Appeal, paras 20,41.. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 41. No: ICC-02/11-01/11 OA 4 29/44 error was thus occasioned and that Mr Gbagbo's fourth ground of appeal should be dismissed. ^^^

text: In relation to Mr Gbagbo's fifth ground of appeal, the Prosecutor notes that Mr Gbagbo alleges an error of fact in the title of his fifth ground of appeal, but in the text argues that it constitutes a legal error. *^* She avers that, regardless of the qualification of this ground, Mr Gbagbo provides no concrete evidence to support collusion between the Prosecutor and the Group of Experts,*^^ and that the allegations are "frivolous and unsubstantiated".*^^ She submits that, while the Prosecution and Group of Experts had two meetings on 14 March 2012 and 14 March 2013, "these meetings were for lead purposes only".*^"^ The Prosecutor emphasises that no information regarding ongoing investigations was shared, and no access was given to Prosecution 17S witnesses. The Prosecutor also disputes the purported similarities between the DCC and the Final Report, noting that the former is significantly more detailed than the latter, and that any overlap is due to the essentially similar nature of the two investigations.*^^ 4. Observations of victims 80. The Victims' Observations in relation to the Final Report are outlined in the previous section at paragraph 67.

text: Determination by the Appeals Chamber 81. In the view of tlie Appeals Chamber, the mere fact of the Final Report's publication cannot support the existence of "changed circumstances" as defined by the Appeals Chamber's jurispradence. Only the facts contained therein could possibly result in "changed circumstances" for the purposes of impacting upon underlying article 58 (1) factors. Furthermore, it is apparent from the Impugned Decision that the Pre-Trial Chamber did consider the facts contained within the Final Report. The Appeals Chamber also notes that Mr Gbagbo does not indicate which purported discrepancies between the Mid-Term Report and the Final Report should have been

text: ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 42. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 43. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 44. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 46. ^^"^ Prosecutor's Response to the Document in Support of the Appeal, para. 44. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 44. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 45. No: ICC-02/11-01/11 OA 4 30/44 taken into account by the Pre-Trial Chamber, or how they would have impacted on the Pre-Trial Chamber's findings.

text: In relation to his fifth ground of appeal, the Appeals Chamber finds that Mr Gbagbo fails to provide any concrete evidence establishing collusion between the Prosecutor and the Group of Experts and that his allegations are speculative at best. For example, Mr Gbagbo argues that "the experts continually refer to 'reliable sources' without ever specifying what kind of sources these might be", inferring that some of these sources may stem from the Office of the Prosecutor, and that, consequently, the Pre-Trial Chamber erred in law in failing to assess "whether one of the 'reliable sources' referred to by the experts is the Prosecutor of the ICC".^^^

text: The Appeals Chamber does not find such arguments persuasive. Recalling that it "will interfere only in the case of a clear error",*^^ the Appeals Chamber finds that the Pre-Trial Chamber did not err in failing to find that the "evidence" presented by Mr Gbagbo in respect of the Office of the Prosecutor's conduct indisputably constitutes a "changed circumstance".

text: The Appeals Chamber therefore dismisses Mr Gbagbo's fourth and fifth grounds of appeal.

text: F. Seventh Ground of Appeal

text: Mr Gbagbo's seventh ground of appeal is that the Pre-Trial Chamber committed an error of law in finding, without giving reasons, that Mr Gbagbo could have access to funds.*^^

text: Relevant procedural context and part of the Impugned Decision 86. In the Impugned Decision, the Pre-Trial Chamber noted that Mr Gbagbo had argued in his 3 July 2013 Submissions that the accounts referred to in the Final Report are not being used by him.*^* It also noted that the Prosecutor has been unable to

text: ^^^ Document in Support of the Appeal, para. 61. ^^^ Document in Support of the Appeal, paras 64-65. ^^^ Bemba OA 2 Judgment, para. 61; Mbarushimana OA Judgment, para. 17. ^^° Document in Support of the Appeal, p. 18. ^^^ Impugned Decision, para. 46, referring to Mr Gbagbo's 3 July 2013 Submissions, paras 50-68. No: ICC-02/11-01/11 OA 4 31/44

text: 1 87 ascertain if the said accounts are, in fact, frozen. The Pre-Trial Chamber considered the accounts referred to in the Final Report to be, "in all likelihood", the same as those previously reported as frozen, and thus accepted that "Mr Gbagbo could not make use 1 8'^ of the assets on these accounts in order to abscond". 87. However, in analysing whether there existed "changed circumstances" for the purposes of its determination pursuant to article 60 (3), the Impugned Decision noted that "the freezing of these accounts was known to the Single Judge at the time of the issuance of the Decision of 13 July 2012, and the finding that certain accounts may 1 84 not have been frozen was made in relation to other accounts". The Pre-Trial Chamber noted that no new information regarding these other accounts had emerged, 1 85 and thus the previous findings on this point remained valid. The Impugned Decision further noted that Mr Gbagbo's arguments regarding the resources of the pro-Gbagbo support network did not "seek to identify changed circumstances but repeat[ed] previously unsuccessful submissions", and therefore the Pre-Trial Chamber 1 8^ declined to respond to them. 88. The Impugned Decision stated that only one of Mr Gbagbo's arguments regarding access to funds is premised on the existence of "changed circumstances", namely that, in its Final Report, the Group of Experts abandoned the assertion that Mr Gbagbo's supporters appeared to be raising funds in Europe in his support.*^^ However, the Pre-Trial Chamber did not consider this factor to be of weight insofar as the Final Report "contains other specific information elucidating the financial capabilities and activities of the network of Mr Gbagbo's supporters, and makes reference also to the collection of funds in the Ivorian diaspora". *^^ Therefore, the Pre-Trial Chamber considered there was "no change in the relevant circumstances" for tlie purposes of article 60 (3) concerning the possibility of Mr Gbagbo having 1 8Q access to funds that may be used to assist him in absconding, should he be released.

text: ^^^ Impugned Decision, para. 46, referring to the Prosecutor's 3 July 2013 Submissions, para. 27. ^^^ Impugned Decision, para. 46. ^^"^ Impugned Decision, para. 47, referring to Decision of 13 July 2013, para. 59. ^^^ Impugned Decision, para. 47. ^^^ Impugned Decision, para. 48. ^^^ Impugned Decision, para. 49, referring to Mr Gbagbo's 3 July 2013 Submissions, para. 71. ^^^ Impugned Decision, para. 49, referring to Group of Experts Final Report, paras 30-33 and 40. ^^^ Imouened Decision, oara. 50. No: ICC-02/11-01/11 OA 4 32/44

text: Mr Gbagbo's submissions before the Appeals Chamber 89. In his Document in Support of the Appeal, Mr Gbagbo argues that the Pre-Trial Chamber erred in law in finding that Mr Gbagbo could have access to funds, without stating reasons for this finding. *^^ However, he also appears to be alleging a factual error insofar as he argues that he has only two current bank accounts (those mentioned in the Final Report that have been held to be frozen), and that, on the basis of his provision of "concrete evidence" to the Pre-Trial Chamber,*^* "it remains that proof has been provided that no 'other accounts' exist and that the Pre-Trial Chamber 1Q7 ignored this fact". He also argues that it is "impossible for the Defence to prove that 1 QO such accounts do not exist", and that the risk identified by the Pre-Trial Chamber that he still had access to other or hidden accounts is based on a mere series of hypotheses, thereby rendering it impossible for Mr Gbagbo to prove changed 194 Circumstances. 90. Mr Gbagbo repeats his criticism of the Pre-Trial Chamber's "lack of reasoning" in previous decisions in relation to finding that unfrozen bank accounts may exist, *^^ arguing further that it is now incumbent on the Pre-Trial Chamber "as requested by the Appeals Chamber" to analyse the evidence tendered by the parties and "make reasoned findings thereon".*^^

text: Prosecutor's submissions before the Appeals Chamber 91. The Prosecutor argues that the findings in the Impugned Decision in relation to 1Q7 access to funds were "reasonable and adequately supported in both law and fact". She recalls the standard under

text: article 60

text: (3) of

text: the Statute

text: whereby an obligation to review a decision is only triggered by the existence of "changed circumstances" - 108 where no such circumstances exist, a de novo decision is not required to be issued. The Prosecutor argues that, therefore, the Pre-Trial Chamber did not err in holding that the "previous findings remain valid" in relation to Mr Gbagbo's access to funds ^^ Document in Support of the Appeal, p. 18. ^^^ Document in Support of the Appeal, para. 76. ^^^ Document in Support of the Appeal, para. 75 (emphasis in original). ^^^ Document in Support of the Appeal, para. 77. ^^'^ Document in Support of the Appeal, para. 77. ^^^ Document in Support of the Appeal, para. 78. ^^^ Document in Support of the Appeal, para. 79. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 50. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 52. No: ICC-02/11.01/11 OA 4 33/44

text: y ^ to the extent that no fuither information has been provided about whether "other accounts" have since been frozen. *^^

text: The Prosecutor also refutes Mr Gbagbo's contention that the Pre-Trial Chamber's factual finding that "certain accounts [belonging to Mr Gbagbo] may not have been frozen" is enoneous.^^^ She submits that the Appeals Chamber has confirmed that detention under article 58 (1) (b) needs only be justified by the "possibility, not the inevitability, of a future occurrence" where this is based on concrete evidence.^^* She argues that the Decision of 13 July 2012, which made the finding that some accounts may not be frozen, was based on concrete evidence, and 70^^ that this evidence was itself cited in the Impugned Decision. " On the basis that neither Mr Gbagbo nor the Prosecutor possesses further evidence about whether the "other" bank accounts have since been frozen, the Prosecutor argues that the Impugned Decision contains no enor.^^"^ 4. Observations of the Victims 93. The Victims did not make observations specifically relating to this ground of appeal.

text: Determination by the Appeals Chamber 94. The Appeals Chamber notes that Mr Gbagbo does not explicitly allege an error of fact in relation to the Pre-Trial Chamber's appraisal of his access to funds. He argues instead that an error of law was occasioned by the Pre-Trial Chamber's failure to give reasons for its findings. However, the Appeals Chamber notes that, according to its jurispradence, there is no requirement to give reasoning or engage in a de novo review of detention where no changed circumstances are established insofar as "[t]he Chamber does not have to enter findings on the circumstances already decided upon in the raling on detention".^^"* Therefore, it follows that it would need to be established that "changed circumstances" existed in relation to Mr Gbagbo's financial

text: ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 52. ^^ Prosecutor's Response to the Document in Support of the Appeal, para. 53. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 53, referring to the Gbagbo O A Judgment, para. 56. ^^'^ Prosecutor's Response to the Document in Support of the Appeal, para. 53, referring to Impugned Decision, para. 47, footnote, 62. "^^ Prosecutor's Response to the Document in Support of the Appeal, para. 54. ^^ Bemba O A 4 Judgment, para. 53. No: ICC-02/11-01/11 OA 4 34/44

text: Situation in order to support an argument that an error of law was occasioned due to lack of reasoning.

text: Mr Gbagbo initially appears to argue (albeit not explicitly) that "changed circumstances" exist in light of new facts he presents in relation to there being only two bank accounts belonging to Mr Gbagbo, both of which have been previously 705 identified as frozen, insofar as "it remains that proof has been provided that no 'other accounts' exist and that the Pre-Trial Chamber ignored this fact".^^^ However, Mr Gbagbo then argues, somewhat incongraously, that the non-existence of other 707 accounts is impossible to prove, and that he caimot therefore establish changed circumstances to warrant a review of the Pre-Trial Chamber's detention raling on this issue. 96. The Appeals Chamber finds that there was no clear error in the Pre-Trial Chamber's conclusion that the previous findings in relation to "other accounts" remained valid. While the Pre-Trial Chamber is required to "weigh the Prosecutor's 708 submissions against the submissions, if any, of the detained person" in this regard, on appeal the burden is on Mr Gbagbo to clearly set out the Pre-Trial Chamber's error and "to indicate, with sufficient precision, how this error would have materially affected the impugned decision" in order to trigger the Appeals Chamber's review power.^^^ The Appeals Chamber finds that Mr Gbagbo has not advanced any arguments that point to the existence of changed circumstances, or to an error of law based on a lack of reasoning. For this reason, and in the absence of any fiirther information coming to light since the Decision of 13 July 2012 regarding unfrozen bank accounts, the Appeals Chamber dismisses Mr Gbagbo's seventh ground of appeal.

text: ^^^ Document in Support of the Appeal, para. 75. ^^ Document in Support of the Appeal, para. 75. ^^^ Document in Support of the Appeal, para. 77. ™ Bemba OA 4 Judgment para. 52. ^^ Prosecutor's Response to the Document in Support of the Appeal, para. 17, referring to, inter alia, Bemba OA 3 Judgment, para. 102. No: ICC-02/11-01/11 OA 4 35/44

text: G. Eighth Ground of Appeal

text: Mr Gbagbo's eighth ground of appeal is that the Pre-Trial Chamber committed 710 an error of fact in considering that a pro-Gbagbo support network exists. 1. Relevant part of the Impugned Decision 98. In examining whether "changed circumstances" existed pursuant to article 60 (3) in the context of article 58 (1) (b) in the Impugned Decision, the Pre-Trial Chamber noted its previous findings of the risks under article 58 (1) (b) (i)-(iii) associated with the existence of a "large and well-organised network of political supporters of Mr Gbagbo" as articulated in the Decisions of 13 July 2012 and 12 November 2012 and subsequent article 60 (3) reviews (see Second Ground of Appeal above). In assessing the current situation in relation to the pro-Gbagbo network, the 711 Pre-Trial Chamber relied upon the findings of the Final Report, holding that it provided "sufficiently detailed information which can be relied upon for the purpose of determining, in line with

text: article 58

text: (1 )(b) of

text: the Statute

text: , whether '[t]he arrest of the person appears necessary'".^*^ 2. Mr Gbagbo's submissions before the Appeals Chamber 99. Mr Gbagbo argues that the Pre-Trial Chamber based the existence of a pro- Gbagbo network on the findings of the Mid-Term Report,^ ^^ referring to paragraph 41 of the Impugned Decision, which actually refers to their consideration of the Final Report. Mr Gbagbo then argues that he has demonstrated that the fiadings of both reports are unfounded.^*"* He gives as an example that one of the few items of evidence listed in the Final Report is the minutes of a meeting of a group of exiled Ivorians "who wished to call upon the assistance of Miss Califomia to increase intemational public awareness of their cause", and that the said minutes show that the 715 group has no resources. Mr Gbagbo concludes that the Pre-Trial Chamber erred in fact in relying on unsubstantiated assertions to support the existence of a network.^*^

text: ^^^ Document in Support of the Appeal, p. 20. ^^^ Impugned Decision, paras 40-42, referring to Final Report, para. 19. ^^^ Impugned Decision, para. 42. ^^^ Document in Support of the Appeal, para. 80, referring to Impugned Decision, para. 41. ^^^ Document in Support of the Appeal, para. 81. ^^^ Document in Support of the Appeal, para. 84, referring to Final Report, Annex 6. ^^^ Document in Support of the Appeal, para. 85. No: ICC-02/11-01/11 OA 4 36/44

text: The Prosecutor's submissions before the Appeals Chamber 100. The Prosecutor disputes the allegation that the Pre-Trial Chamber relied on the Mid-Term Report in the Impugned Decision, noting that the Pre-Trial Chamber concluded on the basis of an analysis of the Final Report that no changed circumstances existed regarding the network of supporters in relation to its previous findings on the issue.'^*^ The Prosecutor argues that Mr Gbagbo has not demonstrated any factual error, and "merely rehashes the arguments explicitly rejected by the 71 8 Chamber", failing to show the Pre-Trial Chamber's conclusion was unreasonable. She submits that Mr Gbagbo has even lifted verbatim certain paragraphs from his 3 July 2013 Submissions.^ She notes that the Impugned Decision regarded Mr Gbagbo's disputation of the conclusions in the Final Report as "unfounded" to be merely '"evidence for the same facts' which 'does not ... constitute a changed 220 circumstance'". 4. Observations of the Victims 101. The Victims do not make any observations specifically relating to this ground of appeal.

text: Determination by the Appeals Chamber 102. The Appeals Chamber dismisses Mi Gbagbo's eighth ground of appeal as it rehearses many of the same arguments in relation to his second ground of appeal and erroneously refers to the Mid-Term Report as the source of the Impugned Decision's findings in relation to the ongoing existence of a pro-Gbagbo network. In fact, the findings in the Impugned Decision in relation to the existence of a pro-Gbagbo network were stated to be based on the evidence before it that, as of the issuance of the Final Report, "[tjhese groups have the capacity to conduct military operations with weapons and related materiel obtained in violation of the sanctions regime and to recrait combatants, inside and outside Côte d'lvoire".^^*

text: ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 56, referring to Impugned Decision, para. 41. '^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 57. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 57, referring to Mr Gbagbo's Submissions of 3 July 2013, para. 86. ^^^ Prosecutor's Response to the Document in Support of the Appeal, para. 58, referring to Impugned Decision, para. 40. ^^^ Impugned Decision, para. 41. No: ICC-02/11-01/11 OA 4 37/44

text: Therefore, the Appeals Chamber finds that the Pre-Trial Chamber was not unreasonable in its reliance on the findings of the Final Report. In the absence of the identification of a clear error, and to the extent that an "appellant's mere disagreement with the conclusions that the Pre-Trial Chamber drew from the available facts or the weight accorded to particular factors is not enough to establish a clear error",^^^ the Appeals Chamber considers that the Pre-Trial Chamber did not err in finding that there remains a network of pro-Gbagbo supporters.

text: H. Ninth Ground of Appeal

text: Mr Gbagbo's ninth ground of appeal is that the Pre-Trial Chamber committed an error of law by not taking into account Mr Gbagbo's health in its assessment of whether his continued detention remained necessary for any of the reasons set out in

text: article 58

text: (1) (b) of

text: the Statute

text: Relevant procedural context and part of the Impugned Decision 105. In Mr Gbagbo's Submissions of 3 July 2013, he argued that, with the effluxion of time, the effects of detention on his health made any improvement unlikely and that 774 there was a risk his condition would deteriorate. ^ Relying on the medical reports of the experts commissioned by the Pre-Trial Chamber on 2 November 2012, Mr 775 Gbagbo submitted that his condition cannot be treated in prison.^^ In addition, he averred that since the Decision of 18 January 2013, the Registry has failed to make any proposal concerning his treatment and this must be understood as an indication 776 that treatment cannot take place in detention. Thus, in Mr Gbagbo's view the effects of incarceration for over two years, coupled with the impossibility of providing appropriate treatment, constituted changed circumstances to which the Pre- Trial Chamber should advert. ^^^ 106. In the Impugned Decision the Pre-Trial Chamber held that the "Defence's submissions [were] limited to repeating arguments which were previously heard by the Chamber, and do not raise any new circumstance. Nevertheless, the Chamber, ^"^ Mbarushimana O A Judgment, paras 21,31. ^^^ Document in Support of the Appeal, p. 21. "^"^ Mr Gbagbo's Submissions of 3 July 2013, para. 99. ^"^ Mr Gbagbo's Submissions of 3 July 2013, para. 100. '-^ Mr Gbagbo's Submissions of 3 July 2013, paras 103-104. ^"^ Mr Gbagbo's Submissions of 3 July 2013, para. 105. No: ICC-02/11-01/11 OA 4 38/44

text: ^ aware of the ongoing concerns in relation to the state of health of Mr Gbagbo, and the passage of time, will explore the possibility for conditional release, as also explained below".^'^

text: Mr Gbagbo's submissions before the Appeals Chamber 107. Mr Gbagbo contends on appeal that the passing of time itself constitutes a changed circumstance with regard to his health and that by ignoring this, the Pre-Trial Chamber refiised to take reality into account, or to heed the warnings issued by experts.'^^^ In his view, "[t]he evolving nature of the pathologies from which he is suffering constitutes a change in circumstances" in light of which the Pre-Trial Chamber was required to assess whether the conditions under

text: article 58

text: (1) (b) of

text: the Statute

text: were still met.'^^^

text: The Prosecutor's submissions before the Appeals Chamber 108. The Prosecutor submits that Mr Gbagbo's arguments in relation to the Impugned Decision constitute a mere disagreement with the Chamber's conclusions about his health. In the absence of any change in circumstances, the Prosecutor argues that the Pre-Trial Chamber was under no obligation to revisit its previous findings and enter a de novo decision.^"^* In addition, the Prosecutor submits that Mr Gbagbo merely "recasts the arguments contained in his original submission and fails to bring any evidence to support this claim outside its reference to expert reports, the content of which has already been assessed by the Chamber in its Decision of 12 November 2012".'^^

text: Observations of the Victims 109. The Victims aver that Mr Gbagbo's contentions regarding his deteriorating health with the passing of time are unsupported by any evidence and constitute mere disagreement with previous findings of the Pre-Trial Chamber which were never

text: ^^^ Impugned Decision, para. 51. ^^^ Document in Support of the Appeal, paras 89-90. ^^^ Document in Support of the Appeal, para. 90. ^^^ Prosecutor's Response to the Document in Support of the Appeal, paras 60-61. "^^ Prosecutor's Response to the Document in Support of the Appeal, para. 63 (footnotes omitted). No: ICC-02/11-01/11 OA 4 39/44 appealed by Mr Gbagbo. Accordingly, the Victims argue that this ground of appeal should be dismissed. ^^^

text: Determination by the Appeals Chamber 110. The Appeals Chamber recalls that in the Gbagbo O A Judgment, it was held that "the medical condition of a detained person may have an effect on the risks under

text: article 58

text: (1) (b) of

text: the Statute

text: , for instance on his or her ability to abscond, potentially negating those risks''.^ Further to this determination by the Appeals Chamber, the Pre-Trial Chamber, in its Decision of 12 November 2012, considered whether the state of Mr Gbagbo's health had any impact on the existence of the grounds for detention under

text: article 58

text: (1) (b) of

text: the Statute

text: , and concluded that this was not the case.

text: The Appeals Chamber notes that in the present appeal, Mr Gbagbo alleges that the Pre-Trial Chamber erred in failing to consider that the effluxion of time itself and the evolving nature of Mr Gbagbo's illness are in and of themselves changed 7^5 circumstances that have an impact on the need for Mr Gbagbo's detention.^ In this regard, it is recalled that the Pre-Trial Chamber, in the Impugned Decision, did not enter into a discussion of the substance of Mr Gbagbo's arguments, but noted that they merely repeated previous submissions and failed to raise a "new circumstance". The Appeals Chamber finds that there is no discernible error in the Pre-Trial Chamber's treatment of these alleged changed circumstances. Mr Gbagbo's reference to the reports of medical experts did not constitute new evidence as these were 7^6 previously assessed by the Pre-Trial Chamber.^ Thus in the absence of any evidence to support his assertion that the passing of time and the evolving nature of his illness are changed circumstances, the Chamber caimot be faulted for rejecting Mr Gbagbo's arguments as being merely repetitive. Mr Gbagbo simply did not present any evidence that would demonstrate that his health has further deteriorated and that this would have any impact on the existence of grounds for his continued detention under

text: article 58

text: (l)(b) of

text: the Statute

text: "^"^ Victims' Observations, para. 38. '^^ Gbagbo OA Judgment, para. 87. '^^^ Document in Support of the Appeal, paras 89-90. '^^ See, ICC-02/11-01/11-T-6-Conf-ENG; ICC-02/11-01/1 l-T-7-Conf-ENG; Decision of 2 November 2012. No: ICC-02/11-01/11 OA 4 40/44

text: The Appeals Chamber has previously held that "[t]he Chamber does not have to enter findings on the circumstances already decided upon in the raling on detention" and does not have to "entertain submissions by the detained person that merely repeat arguments that the Chamber has already addressed in previous decisions".^^^ Accordingly, this ground of appeal is dismissed.

text: I. Tenth Ground of Appeal

text: Mr Gbagbo's tenth ground of appeal is that the Pre-Trial Chamber committed o o o an error of law in its examination of the requirements for conditional release. 1. Relevant procedural context and part of the Impugned Decision 114. In Mr Gbagbo's Submissions of 3 July 2013, he argued in the altemative for his conditional release on account of the irreversible consequences of detention on his health, the guarantees fiimished by Mr Gbagbo as to his appearance should he be released, and the guarantees furnished by [REDACTED] to comply with any conditions set by the Pre-Trial Chamber.'^^^

text: In the Impugned Decision, the Pre-Trial Chamber referred to its previous finding that the "risks associated with Mr Gbagbo's release and knowledge by the outside world of such release can at present only be effectively managed in the Court's detention centre" and noted that the "risks continue to exist".^^^ However, the Pre-Trial Chamber considered it appropriate to explore whether the risks could be sufficiently mitigated to permit conditional release. The Pre-Trial Chamber found that, "at this point in time, no concrete option to release Mr Gbagbo under conditions that would sufficiently mitigate those risks, is known to the Chamber", and thus 741 conditional release was not to be granted. 2. Mr Gbagbo's submissions before the Appeals Chamber 116. Mr Gbagbo contends that the Pre-Trial Chamber erred in not reasoning why guarantees, for example, those imposed by the Judges, would not minimise the risks

text: ^^^ See Bemba OA 4 Judgment, para. 53. ^^^ Document in Support of the Appeal, p. 22. '^^ Mr Gbagbo's Submissions of 3 July 2012, paras 111-114. ^^ Impugned Decision, para. 55, referring to Decision of 12 March 2013, para. 44. ^^^ Impugned Decision, para. 55. No: ICC-02/11-01/11 OA 4 41/44

text: ^ and justify conditional release.'^"*^ In addition, Mr Gbagbo argues that "it was incumbent upon the Pre-Trial Chamber to explain, point by point, why the numerous security measures proposed by [REDACTED] would not mitigate these risks".^"*^ In the absence of such an explanation, Mr Gbagbo argues that "it leaves the way open for arbitrary decisions".^"^ Finally, Mr Gbagbo argues that the Pre-Trial Chamber had a duty to request further information from the host state about the possible conditions of conditional release.^"*^

text: The Prosecutor's submissions before the Appeals Chamber 111. The Prosecutor submits that Mr Gbagbo's arguments should be dismissed as they are lacking in merit. In her view, the Pre-Trial Chamber would have considered the conditions set out in rale 119 (1) of the Rules of Procedure and Evidence before concluding that no concrete option is known to the Chamber that would mitigate the risks against conditional release.^"*^ Furthermore, the Prosecutor avers that in the period under review, no State had offered to receive Mr Gbagbo. [REDACTED] proposal was considered by the Pre-Trial Chamber in its Decisions of 13 July 2012 and 12 November 2012 and rejected as being iasufficient to mitigate the risks.^"*^ Thus in her view, it would be "unreasonable to assume that old guarantees offered at a point in time are still standing".^"*^

text: Observations of the Victims 118. The victims do not make any observations in relation to this ground of appeal.

text: Determination by the Appeals Chamber 119. In relation to Mr Gbagbo's arguments that the Pre-Trial Chamber erred in not sufficiently reasoning its decision on conditional release, the Appeals Chamber recalls that the Pre-Trial Chamber's finding on the risks associated with conditional release have remained unchanged since its Decision of 13 July 2012, a finding that was subsequently upheld on appeal.'^"*^ Furthermore, given that "the scope of review

text: ^"^^ Document in Support of Appeal, para. 97. ^"^^ Document in Support of Appeal, para. 98. ^^ Document in Support of Appeal, para. 99. ^^^ Document in Support of Appeal, para. 100. ^^ Prosecutor's Response to the Document in Support of Appeal, para. 67. ^"^^ Prosecutor's Response to the Document in Support of Appeal, paras 67-69. ^^ Prosecutor's Response to the Document in Support of Appeal, para. 69. ^"^^ See Gbagbo OA Judgment para. 80. No: ICC-02/11.01/11 OA 4 42/44

text: ^ carried out in reaching a decision under article 60 (3) is potentially much more limited than that to be carried out in reaching a decision under

text: article 60

text: (2) of

text: the Statute

text: ",^^^ it is not unreasonable for the Pre-Trial Chamber to have refrained from providing additional reasoning when reviewing its finding on conditional release, given that no changed circumstances were found.

text: As for Mr Gbagbo's arguments concerning the lack of reasoning when rejecting the proposal from [REDACTED] to host him should conditional release be granted, the Appeals Chamber finds that Mr Gbagbo's arguments relate to submissions in relation to previous decisions of the Pre-Trial Chamber where findings on the [REDACTED] proposal were made, in particular the Decision of 13 July 2012, the Decision of 18 January 2013 and the Decision of 12 March 2013. The Appeals Chamber notes that for the period of detention under review, the Pre-Trial Chamber did not consider any proposal from [REDACTED] as no new proposal was presented. In the circumstances, the Appeals Chamber considers Mr Gbagbo's arguments that attempt to re-litigate issues on appeal that were the subject of previous decisions of the Pre-Trial Chamber and which do not arise in the Impugned Decision to be inappropriate, and they are therefore rejected. It follows that Mr Gbagbo's argument that the Pre-Trial Chamber had a duty to request further information from the potential host State about the possible conditions of conditional release should also be rejected since the Pre-Trial Chamber was not considering any proposal from [REDACTED] during the period in question.

text: In light of the foregoing, the Appeals Chamber finds that the Pre-Trial Chamber did not err, and this ground of appeal is dismissed.

text: V. APPROPRIATE RELIEF

text: On an appeal pursuant to

text: article 82

text: (1) (b) of

text: the Statute

text: , the Appeals Chamber may confirm, reverse or amend the decision appealed (rale 158 (1) of the Rules of Procedure and Evidence). In the present case it is appropriate to confirm the Impugned Decision as it was not materially affected by any error. Consequently, the appeal is dismissed.

text: Judge Erkki Kourala appends a separate opinion to this judgment.

text: ^^^ See Gbagbo OA Judgment para. 24. No: ICC-02/11.01/11 OA 4 43/44

text: Judge Anita Usacka appends a dissenting opinion to this judgment. Done in both English and French, the English version being authoritative.

text: /^iSi^

text: Judge Akua Kuenyehia Presiding Judge Dated this 29* day of October 2013 At The Hague, The Netherlands

text: No: ICC-02/11-01/11 OA 4 44/44

title: The Prosecutor v. Laurent Gbagbo