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

Original: English No. ICC-01/05-01/13 OA 13 Date: 8 August 2016

THE APPEALS CHAMBER

Before: Judge Sanji Mmasenono Monageng, Presiding Judge Judge Silvia Fernández de Gurmendi Judge Howard Morrison Judge Piotr Hofmański Judge Péter Kovács

SITUATION IN THE CENTRAL AFRICAN REPUBLIC

IN THE CASE OF THE PROSECUTOR v. JEAN-PIERRE BEMBA GOMBO, AMIÉ KILOLO MUSAMBA, JEAN-JACQUES MANGENDA KABONGO, FIDÈLE BABALA WANDU AND NARCISSE ARIDO

Public

Judgment on Mr Mangenda’s appeal against the “Decision on request for compensation for unlawful detention”

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

The Office of the Prosecutor Counsel for Jean-Jacques Mangenda

Ms Fatou Bensouda, Prosecutor Kabongo Ms Helen Brady Mr Christopher M. Gosnell Mr Arthur Vercken

Counsel for Jean-Pierre Bemba Gombo

Ms Melinda Taylor

Counsel for Aimé Kilolo Musamba

Mr Paul Djunga Mudimbi Mr Steven Powles

Counsel for Fidèle Babala Wandu

Mr Jean-Pierre Kilenda Kakengi Basila Mr Roland Azama Shalie Rodoma

Counsel for Narcisse Arido

Mr Charles Achaleke Taku Ms Beth Lyons

REGISTRY Registrar

Mr Herman von Hebel

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The Appeals Chamber of the International Criminal Court,

In the appeal of Jean-Jacques Mangenda Kabongo against the decision of Trial Chamber VI entitled “Decision on request for compensation for unlawful detention” of 26 February 2016 (ICC-01/05-01/13-1663),

Renders unanimously the following

J U D G M E N T

The “Decision on request for compensation for unlawful detention” is confirmed.

REASONS

I. PROCEDURAL HISTORY

1 On 21 October 2014, the Single Judge of Pre-Trial Chamber II (“Pre-Trial Chamber”) issued the “Decision ordering the release of Aimé Kilolo Musamba, Jean- 1 Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido” (“Release Order”). In the Release Order, the Pre-Trial Chamber noted that “all of the Released Persons are the legitimate holders of documents entitling them to return to the countries of which they are nationals, or where they were residing at the time of their arrest, as follows: […] Jean-Jacques Mangenda Kabongo, a national of the Democratic Republic of the Congo, is the holder of a visa expiring in August 2015 for 2 the United Kingdom, where his family resides and where he seeks to be released”. The Release Order, inter alia , directed that the persons concerned “shall be released, subject to the […] order” to the Registrar “to ensure that, prior to their leaving the Detention Centre of the Court, each of the [persons to be released] sign an individual declaration (i) stating their commitment to appear at trial, or whenever summoned by the Court, and (ii) indicating the address at which they will be staying”. The Release Order also stipulated that the Registrar was to “promptly make all the practical

1 ICC-01/05-01/13-703 . 2 Release Order , p. 6. Release Order , p. 6.

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arrangements which are necessary and appropriate for the purposes of the enforcement of this decision”.

2 On 22 October 2014, the day the Pre-Trial Chamber dismissed the Prosecutor’s

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urgent motion for a stay of the Release Order, the Registrar notified Mr Mangenda

that the United Kingdom of Great Britain and Northern Ireland, the country to which

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he had intended to be released, had revoked his visa earlier that day. The Registrar

informed Mr Mangenda that, as a national of the Democratic Republic of the Congo (“DRC”), should he wish to be released with immediate effect, he could be released in

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the DRC. Mr Mangenda expressed concern at this proposal and indicated that he

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wished to explore the possibility of being released in other countries. Mr Mangenda

continued to be detained at the ICC Detention Centre during the period 22 October to

31 October 2014 until his release to a country that was willing to accept him and to

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which he was willing to go.

3 On 26 February 2016, Trial Chamber VI (“Trial Chamber”) rendered its “Decision on request for compensation for unlawful detention”

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(“Impugned Decision”) where it held that there is no basis for finding that the continued detention

of Mr Jean-Jacques Mangenda Kabongo (“Mr Mangenda”) between 22 October and

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31 October 2014 was unlawful. In assessing Mr Mangenda’s claim for

compensation for the alleged unlawful detention between 22 October and 31 October

Release Order , p. 7. 5 Pre-Trial Chamber II, “Decision on the Prosecutor’s ‘Urgent Motion for Interim Stay of the “Decision ordering the release of Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido”’”, 22 October 2014, ICC-01/05-01/13-711 . See also Pre-Trial Chamber II, “Urgent Motion for Interim Stay of the ‘Decision ordering the release of Aimé Kilolo Musamba, Jean- Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido’”, dated 21 October 2014 and registered on 22 October 2014, ICC-01/05-01/13-705. On the same day, the Appeals Chamber rejected the Prosecutor’s urgent motion to suspend the effect of the Release Order, see Appeals Chamber, “Decision on the Prosecutor’s urgent request for suspensive effect of the ‘Decision ordering the release of Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido’ of 21 October 2014”, 22 October 2014, ICC-01/05-01/13-718 (OA 9). 6 “Registry’s Report on the Implementation of the ‘Decision ordering the release of Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido’ (ICC-01/05- 01/13-703)”, 27 October 2014, ICC-01/05-01/13-722-Conf (“First Registry Report”), para. 22. 7 First Registry Report, para. 23. 8 First Registry Report, para. 24. 9 “Registry’s Fourth Report on the Implementation of the ‘Decision ordering the release of Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo, Fidèle Babala Wandu and Narcisse Arido’ (ICC-01/05- 01/13-703)”, 12 November 2014, ICC-01/05-01/13-751-Conf. 10 ICC-01/05-01/13-1663 . 11 Impugned Decision , para. 26.

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2014, the Trial Chamber held that the Release Order was “clearly conditional in

nature, and the release was only to be implemented upon fulfilment of the specified

conditions”. 12 The Trial Chamber held further that the requirement that each of the

persons to be released, including Mr Mangenda, provide the address at which they

would be staying, was a “reasonable and foreseeable pre-condition to release pending

13 trial”. The Trial Chamber noted that “Mr Mangenda refused the option of being

14 released to the DRC and had no immediate entitlement to enter any other country”.

As such, the Trial Chamber found that “Mr Mangenda consequently failed, at that

stage, to fulfil one of the pre-conditions to his release” and he therefore “had no

15 entitlement to immediate and unconditional release as of 22 October 2014”.

4 On 13 May 2016, the Trial Chamber granted, in part, Mr Mangenda’s request

16 for leave to appeal the Impugned Decision (“Decision Granting Leave to Appeal”).

5 On 27 May 2016, Mr Mangenda filed the “Corrigendum to Brief in Support of

Appeal from ‘Decision on request for compensation for unlawful detention’ (ICC-

17 01/05-01/13-1663)” (“Document in Support of the Appeal”).

6 On 6 June 2016, the Prosecutor filed the “Prosecution response to Jean-Jacques

Mangenda Kabongo’s appeal of ‘Decision on request for compensation for unlawful

18 detention’” (“Response to the Document in Support of the Appeal”).

7 On 14 June 2016, the Appeals Chamber granted, in part, Mr Mangenda’s

19 request for leave to reply to the Prosecutor’s Response to the Document in Support

20 of the Appeal.

12 Impugned Decision , para. 21. See also Impugned Decision, para. 9. 13 Impugned Decision , para. 23. 14 Impugned Decision , para. 23. 15 Impugned Decision , para. 23. 16 Trial Chamber VI, “Decision on Defence request seeking leave to appeal the ‘Decision on request for compensation for unlawful detention’”, 13 May 2016, ICC-01/05-01/13-1893. 17 Original version registered on 26 May 2016 and corrigendum registered on 27 May 2016, ICC- 01/05-01/13-1908-Conf-Corr (OA 13); a public redacted version was registered on 14 July 2016 ( ICC- 01/05-01/13-1908-Corr-Red ) (OA 13). 18 ICC-01/05-01/13-1924-Conf (OA 13); a public redacted version was registered on 13 July 2016 ( ICC-01/05-01/13-1924-Red ) (OA 13). 19 “Request for Leave to Reply to ‘Prosecution response to Jean-Jacques Mangenda Kabongo’s appeal of “Decision on request for compensation for unlawful detention”’ (ICC-01/05-01/13-1924-Conf)”, ICC-01/05-01/13-1930 (OA13) (“Request for Leave to Reply”). This document was originally filed

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8 On 17 June 2016, Mr Mangenda filed the “Reply to ‘Prosecution response to

Jean-Jacques Mangenda Kabongo’s appeal of “Decision on request for compensation for unlawful detention”’ (ICC-01/05-01/13-1924-Conf)”

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(“Reply”).

II. ADMISSIBILITY OF THE APPEAL

9 The Prosecutor challenges the admissibility of the appeal on the basis that the

Impugned Decision is a final decision and not an interlocutory decision. In her view,

article 82 of the Statute generally and in particular article 82 (1) (d) of the Statute

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governs appeals of interlocutory decisions. She submits that the Appeals Chamber is not bound by the “characterisation” of the Impugned Decision by the Trial Chamber,

nor is it bound by the Trial Chamber’s “assessment that leave to appeal was necessary

in this case “[d]ue to human rights considerations under […] article 21(3) of the Statute”.

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Rather, based on a prior decision of the Appeals Chamber in the Lubanga

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reparation appeals (“ Lubanga Admissibility Decision”), she argues that it is the task

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of the Appeals Chamber to establish the true nature of an impugned decision.

10 Mr Mangenda submits that the Prosecutor’s arguments are founded on a disagreement “with the Pre-Trial Chamber’s interpretation of the scope of Article

82(1)(d)”.

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He argues that article 82(1) (d) expressly confers discretion on the Pre-

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Trial or Trial Chamber to determine whether leave to appeal should be granted. In

addition, Mr Mangenda argues that in the absence of any indication that “the Appeals

confidentially but was reclassified as public pursuant to the “Order on the reclassification of documents”, 21 July 2016 (ICC-01/05-01/13-1953) (OA 13). 20 “Decision on Mr Mangenda’s request for leave to reply to the Prosecutor’s response to his appeal against the decision of Trial Chamber VI entitled ‘Decision on request for compensation for unlawful detention’”, ICC-01/05-01/13-1931 (OA 13) (“Decision on Request for Leave to Reply”). This document was originally filed confidentially but was reclassified as public pursuant to the “Order on the reclassification of documents”, 21 July 2016 (ICC-01/05-01/13-1953) (OA 13). 21 ICC-01/05-01/13-1934 (OA 13). This document was originally filed confidentially but was reclassified as public pursuant to the “Order on the reclassification of documents”, 21 July 2016 (ICC- 01/05-01/13-1953) (OA 13). 22 Response to the Document in Support of the Appeal , para. 5. 23 Response to the Document in Support of the Appeal , para. 7, referring to Decision Granting Leave to Appeal, para. 21, which in turn cited “Decision on the ‘Requête en appel de la défense de monsieur Aimé Kilolo Musamba contre la décision de la Chambre de première instance VII du 17 novembre 2015.’”, 23 December 2015, ICC-01/05-01/13-1533 (OA 12) (“ Kilolo Decision”), para. 16. 24 “Decision on the admissibility of the appeals against Trial Chamber I’s ‘Decision establishing the principles and procedures to be applied to reparations’ and directions on the further conduct of proceedings”, 14 December 2012, ICC-01/04-01/06-2953 (A A2 A3 OA 21). 25 Response to the Document in Support of the Appeal , para. 7. 26 Reply, para. 2. 27 Reply, para. 3

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Chamber’s determination of the issue would surpass its proper functions or jurisdiction”, the Prosecutor’s arguments should be dismissed 28 in limine . Finally, Mr Mangenda submits that there is no legal prerequisite that leave to appeal only be 29 granted under article 82 (1) (d) of the Statute in respect of “interlocutory” decisions.

11 The Prosecutor argues that article 82 (1) (d) of the Statute governs the appeal of “interlocutory” decisions only and that the Impugned Decision is in fact a “final” decision. This argument calls into question the scope of article 82 (1) (d) of the Statute rather than its application, and raises the issue of whether the impugned decision in the present case may be considered under article 82 (1) (d) of the Statute.

12 The Appeals Chamber has previously held that “article 82 (1) (d) of the Statute clearly vests power solely in the Pre-Trial and Trial Chambers to certify appealable issues and to determine whether appellate resolution will materially advance the proceedings”. 30

13 However, the Appeals Chamber has held that “[w]here necessary, [...] [it] has to establish the true nature of an impugned decision, in order to ensure that the decision in question is appropriately before it, and that the appeal is determined pursuant to the correct legal basis”. 31 In the same decision, the Appeals Chamber reviewed the scope of article 82 (1) (d) of the Statute and ultimately rejected as inadmissible an appeal against an order for reparations brought under article 82 (1) (d) of the Statute, based on its determination that final judicial decisions in respect of reparations are 32 appealable under article 82 (4) of the Statute.

14 In the case at hand, the Appeals Chamber considers it necessary to determine as a preliminary matter whether decisions on whether an accused has been unlawfully detained fall within the scope of article 82 (1) (d) of the Statute.

28 Reply, para. 7. 29 Reply, para. 8. 30 The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé , “Judgment on the appeal of Mr Laurent Gbagbo against the decision of Trial Chamber I entitled ‘Decision giving notice pursuant to Regulation 55(2) of the Regulations of the Court’”, 18 December 2015, ICC-02/11-01/15-369 (“ Gbagbo OA 7 Judgment”), para. 18. 31 Lubanga Admissibility Decision , para. 50. 32 Lubanga Admissibility Decision , paras 63-64.

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15 The Appeals Chamber notes that article 82 (1) (d) of the Statute simply refers to a “decision” without further characterising the nature of the decision. Nevertheless, it is clear from its requirement that a decision appealed thereunder must have the potential to “affect the fair and expeditious conduct of the proceedings or the outcome of the trial”, and that article 82 (1) (d) of the Statute allows for appeals of an interlocutory nature.

16 The Appeals Chamber notes that compensation proceedings under article 85 (1) of the Statute may be seen as “stand alone” or ancillary proceedings, separate from 33 the criminal prosecution of Mr Mangenda before the Court. Nevertheless, the Appeals Chamber is of the view that this does not justify depriving the parties of the possibility of appellate intervention throughout the conduct of such proceedings.

17 On the contrary, the Appeals Chamber notes that, before making its final determination on whether or not to grant compensation under article 85 (1) of the Statute, the Chamber may need to take other decisions that could be considered to be interlocutory to the final outcome of such “stand alone” proceedings. Indeed, compensation proceedings under article 85 (1) of the Statute involve a two-step process that requires at least two distinct decisions. These decisions are the following: (i) a decision on the unlawfulness of the arrest or detention under article 85, paragraph 1 (rule 173 (2) (a) of the Rules); and (ii) a decision on the request for compensation (rule 174 (3) of the Rules of Procedure and Evidence (“Rules”). As set out above, it is the latter decision to grant or reject a request for compensation which concludes or brings to an end the compensation proceedings. The Appeals Chamber considers that the preliminary decision on the unlawfulness of the arrest or detention represents only the first decision in a two-step decision-making process and for that reason it may be considered to be an interlocutory decision within the meaning of article 82 (1) (d) of the Statute. In the Appeals Chamber’s view, this is so even if such a decision has, as in the case at hand, the effect of denying the right to receive compensation and thereby brings the compensation proceedings to an end.

33 See Response to the Document in Support of the Appeal , para. 5. See also Dissenting Opinion of Judge Chang-Ho Chung, para. 5.

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18 Accordingly, the Appeals Chamber rejects the Prosecutor’s arguments and finds that the appeal is admissible.

III. PRELIMINARY ISSUE

19 The Appeals Chamber recalls that the Trial Chamber granted leave to appeal, inter alia , the following issue:

Whether a decision on the unlawfulness of detention is required as a condition precedent to seeking compensation under Article 85(1) of the Statute and Rule 34 173 of the Rules, and which body should appropriately make such a finding. 20. Mr Mangenda contends that this issue is not “appealable” under article 82 (1) (d) of the Statute as, in his view, the Trial Chamber did not determine the issue in question, but rather itself “proceeded to consider the merits of the lawfulness of detention on the basis that it was ‘in the interests of justice’”. 35 He submits that the certification of the issue is indicative of the Trial Chamber seeking “advisory guidance” from the Appeals Chamber on the matter. 36 He argues that, by virtue of its inherent jurisdiction to determine the scope of interlocutory appeals brought before it, the Appeals Chamber may “decline to adjudicate a matter for which leave to appeal has been granted by a Trial Chamber”. 37 Thus, he submits that the Appeals Chamber should not address this issue.

21 The Prosecutor on the other hand argues that Mr Mangenda’s appeal should be dismissed as he “fails to articulate an error for appellate scrutiny”. 38 She submits that Mr Mangenda “reluctantly argues” this ground of appeal and he “fails to meaningfully engage with the rationale of requiring a prior finding of unlawful detention for any 39 compensation claim”.

22 The Appeals Chamber has previously stated that “appellate proceedings at the 40 Court are of a corrective nature” in the sense that the Appeals Chamber is

34 Decision Granting Leave to Appeal, para. 23 (i). 35 Document in Support of the Appeal , para. 28. 36 Document in Support of the Appeal , para. 29. 37 Document in Support of the Appeal , paras 30-31. 38 Response to the Document in Support of the Appeal , para. 1. 39 Response to the Document in Support of the Appeal , para. 2. 40 The Prosecutor v. Thomas Lubanga Dyilo , “Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction”, 1 December 2014, ICC-01/04-01/06-3121-Conf; a public redacted version was registered on the same day ( ICC-01/04-01/06-3121-Red (A 5)) (“ Lubanga A 5 Judgment”), para. 56.

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empowered to review the correctness of an impugned decision in accordance with the applicable standard of review and may, pursuant to rule 158 of the Rules, confirm, reverse or amend the decision appealed if an error materially affecting the decision is identified. Such appellate review is conducted on the basis of the grounds of appeal raised by an appellant. Regulation 64 (2) read with regulation 65 (4) of the Regulations of the Court requires an appellant to file a document in support of the appeal which shall set out the grounds of appeal and shall contain the legal and/or factual reasons in support of each ground of appeal and, where applicable, identify the finding or ruling challenged in the decision.

23 As such the scope of appellate review is determined by the grounds of appeal 41 raised and the alleged errors identified thereunder to impugn the decision concerned. In the case at hand, the Appeals Chamber notes preliminarily that the first issue for which leave to appeal was granted by the Trial Chamber was an issue formulated proprio motu by the Chamber and not one sought to be appealed by Mr Mangenda. On appeal, Mr Mangenda does not appear to raise any grounds of appeal with respect to this issue. In fact, he requests that the Appeals Chamber disregard the first issue for 42 which leave to appeal was granted. In these circumstances, as there is no ground of appeal advanced by Mr Mangenda the Appeals Chamber is unable to review, in relation to the certified issue, the correctness or otherwise of the Impugned Decision.

IV. MERITS

The first ground of appeal

24 The Appeals Chamber observes that the Trial Chamber also granted leave to appeal with respect to the following issue:

See also The Prosecutor v. Abdallah Banda Abakaer Nourain , “ Judgment on the appeal of the Prosecutor against the decision of Trial Chamber IV of 12 September 2011 entitled ‘Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation’”, 17 February 2012, ICC-02/05-03/09-295 (OA 2), para. 20. 41 In this regard it is noted that the Appeals Chamber has previously considered that it is not necessarily bound by the characterisation of the type of errors asserted by the parties. See The Prosecutor v. Simone Gbagbo , “Judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chamber I of 11 December 2014 entitled ‘Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo’”, 27 May 2015, ICC-02/11-01/12-75-Conf; a public redacted version was registered on the same day ( ICC-02/11-01/12-75-Red (OA)) (“ Simone Gbagbo OA Admissibility Judgment”), paras 1, 70. 42 Document in Support of the Appeal , para. 41.

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Whether the Chamber erred in finding that Mr Mangenda’s detention from 22 to 31 October 2014 ‘constituted an extension of his lawful detention pursuant to the initial arrest warrant of 20 November 2013 and the conditions identified in the Release Order’. 43 25. Under this ground of appeal Mr Mangenda appears to challenge the Trial Chamber’s finding that his detention after 22 October 2014 constituted an extension of his lawful detention.

26 However, as pointed out by the Prosecutor, the Appeals Chamber finds that Mr Mangenda fails to address the Trial Chamber’s specific findings with which he takes issue or show how the Trial Chamber allegedly erred in finding that his detention was 44 not unlawful. Moreover, the Appeals Chamber notes that Mr Mangenda’s arguments also fail to demonstrate any unreasonableness in the Trial Chamber’s ultimate determination on the lawfulness of his detention. In fact, Mr Mangenda’s arguments under this ground of appeal are devoid of a single reference to the Impugned Decision.

27 As articulated in paragraph 22 above, appellate review is conducted on the basis of the grounds of appeal raised by an appellant and he/she is required inter alia , to set out the legal and/or factual reasons in support of each ground of appeal. In addition, the Appeals Chamber has held that, where an appellant fails to identify an alleged error or to draw a link between the alleged error and its material effect on the impugned decision, the Appeals Chamber will not consider the merits of the ground 45 of appeal concerned and instead will dismiss the ground in limine .

28 In the circumstances, Mr Mangenda has failed to meet the minimum requirements of substantiation for a consideration of the merits of this ground of appeal. Accordingly the ground of appeal is dismissed in limine.

43 Decision Granting Leave to Appeal, para. 23 (ii). 44 Response to the Document in Support of Appeal , para. 21. 45 The 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, ICC-01/05-01/08-962 , paras 102- 104.

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V. APPROPRIATE RELIEF

29 On an appeal pursuant to article 82 (1) (d) of the Statute, the Appeals Chamber may confirm, reverse or amend the decision appealed (rule 158 (1) of the Rules of Procedure and Evidence). In the present case the Appeals Chamber has dismissed in limine the ground of appeal raised by Mr Mangenda and, in consequence, the Impugned Decision is confirmed.

Done in both English and French, the English version being authoritative.

_____________________________ Judge Sanji Mmasenono Monageng Presiding Judge

th Dated this 8 day of August 2016 At The Hague, The Netherlands

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