International Justice Monitor

A project of the Open Society Justice Initiative

Bemba and His Lawyer Protest Terms of Their ICC Detention

Aimé Kilolo-Musamba, who until last month was the lead counsel to Jean-Pierre Bemba, has protested the terms under which he and the former vice president of Congo are being held by the International Criminal Court (ICC) at the Scheveningen detention center in The Hague.

Mr. Kilolo was arrested on November 23 on allegations of forging evidence in the ongoing trial of Mr. Bemba for war crimes and crimes against humanity.

At a status conference today, the defense lawyer listed a litany of restrictions imposed on him and Mr. Bemba, which prompted the single judge handling the case to order their immediate lifting.

Since his transfer to Scheveningen on November 25, contact between Mr. Bemba and his defense lead, as well as with their respective families, have been restricted to 30 minute phone calls per day. They have also been entitled to an hour of monitored visits with family members per week.

These restrictions, together with an initial 72 hours of zero permitted contact between Mr. Bemba and Mr. Kilolo following the arrest of the defense lawyer, had been extended repeatedly and were due to expire this Saturday.

“This is disturbing to Mr. Bemba’s children,” said Magali Pirard, the lawyer who represented him. Presumably, these latest family restrictions did not previously apply to Mr. Bemba, who has been in court custody since July 2008.

Jean-Pierre Kilenda Kakengi Basila, who represented Mr. Kilolo, said that as lead counsel in Mr. Bemba’s ongoing trial, it was necessary to review the monitoring of communication between Mr. Kilolo and Mr. Bemba. In addition, he said, “to ask [Kilolo’s] minor children, who haven’t seen their father, to have a meeting for an hour, and 30 minute phone calls per day, we think this is additional punishment for the wife and children.”

Mr. Kilolo asked the judge to lift the restrictions and suggested that a distinction be drawn between contact with family members and third parties with whom contact may influence the outcome of the proceedings.

“I think this is a question of principle, a question of law, and protection of children,” he said. He also requested to be granted privileged contact with a lawyer from the Belgian bar to follow up on clients and cases from his law firm in Brussels.

Mr. Basila asked that computer hard drives belonging to Mr. Kilolo, which are currently in the possession of the court’s registry, should be returned as they contained information prosecutors should not access. The information not only related to Mr. Bemba’s ongoing trial, but also information relating to Mr. Kilolo’s other clients at his law firm.

This information was privileged and had nothing to do with the case against his client, said. The hard drives also contained family photos that were “entirely private in nature.”

Meanwhile, Ms. Pirard said among the items seized from Mr. Bemba at the detention center were hand-written notes related to his work as a Congolese Senator.

Marc Dubuisson, the ICC director of court services, said before disclosing to prosecutors any information contained on the seized items, the registry would “ensure that the two cases and their integrity are respected fully.”

Judge Tarfusser ruled that all seized material remain in the custody of the registry and an independent counsel be appointed to go through them to determine those related to the charges against the accused.

He said all privileged and private material should be handled in “a quick and confidential manner and be returned to whom it may concern as soon as possible.” Such information should not get into the hands of prosecutors, he added.

On November 20, 2013, Judge Cuno Tarfusser issued a warrant of arrest for Mr. Bemba and Mr. Kilolo after finding that there were reasonable grounds to believe that they were criminally responsible for corruptly influencing witnesses before the ICC and presenting evidence they knew to be false or forged.

Three other individuals arrested on the same charges are Jean-Jacques Mangenda Kabongo, the case manager in Mr. Bemba’s trial, Fidèle Babala Wandu, a member of the Congolese parliament, and Narcisse Arido, a defense witness in Mr. Bemba’s trial.

At a status conference last Thursday, Sylvia Steiner, the presiding judge in the ongoing trial, said the accused had a right to be represented by counsel of his choice, and it was important that he communicated with Mr. Kilolo on matters relating to his legal representation.

Today’s status conference was the first in a series aimed at addressing issues such as the disclosure of evidence by the prosecution and the defense. Filings on the charges and the list of witnesses are scheduled to be finalized in early May 2014, after which a decision on the confirmation of charges will be issued in writing by the judge.

Defense lawyers said today they were unable to determine what evidence they would rely on as they were still waiting for prosecutors to disclose their evidence.

The prosecution said it would “fundamentally” rely on the evidence used to support the arrest warrants. This included “independent reports,” audio material, and records of financial transactions.

Last week, Mr. Bemba’s defense lawyers stated that the new charges had harmed their client’s defense. They said Mr. Kilolo’s iPad and Blackberry were seized during his arrest, yet they contained “the entire defense strategy” in the ongoing trial. At the time of the arrests, the defense had just completed presenting its evidence and started compiling its closing statement.

 

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