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Bemba Seeks to Have His Assets Unfrozen by the ICC

Jean-Pierre Bemba, the Congolese opposition leader acquitted by International Criminal Court (ICC) judges last June, has faulted the court’s Registry for not pursuing the unfreezing of his assets, which were frozen a decade ago. The Registry says unfreezing the assets is “complicated” since Bemba owes the court funds advanced to his lawyers, and because, following his witness tampering conviction, he was handed a €300,000 fine which he would pay “possibly using his frozen assets.”

In May 2008, Bemba’s property and bank accounts in Belgium, Congo, and Portugal were frozen on orders of ICC judges. The property included telephones, computers, fax machines, documents, houses, a car, bank accounts, and reportedly, a plane and yacht.

Last July, Trial Chamber III judges ordered Bemba to refund €1.88 million advanced to him by the court. In October 2009, when judges ordered the Registry to provide advanced funding for Bemba’s defense in the sum of €30,150 per month, they stated that whereas Bemba had considerable wealth, at the time he had no power to freely dispose of his assets so he lacked the means to pay his lawyers.

Defense lawyer Peter Haynes counters that it is unlawful to maintain the freeze four months after Bemba’s acquittal and has asked judges to lift the freezing orders.  Haynes says some of the frozen property belongs to Bemba’s wife and brother.

In court filings, Bemba says his property of lesser value has been accounted for, but more valuable property, whose particulars are redacted from public filings, remains unaccounted for. He wants judges to order the three states to provide an inventory of each property frozen, its precise location, and its value throughout the period of its detention.

According to Haynes, the Registry has failed to provide an accurate inventory of the frozen assets, although it was its responsibility to do so. He said domestic court documents available to Bemba, as well as his knowledge, suggest that there is “a wealth of other frozen property of which the Registry is not aware.”

Haynes said in Portugal, the freezing of assets was indiscriminate and “it appears that property belonging to any member of the Bemba family which could be located was frozen and remains so.” He added: “Even putting aside the question of whether this was legal in the first place, continuing to freeze assets of third parties on the basis that a portion of Mr. Bemba’s legal fees are currently unpaid, is manifestly unlawful.”

The Registry opposes disclosure to the defense of all filings it has that are related to the frozen assets. The Registry has also said that it would be “time-consuming” to secure the agreement of states to disclose to Bemba related information, including on the extent of their cooperation with the court.

He also said Bemba cannot be expected to trace his own assets and make multiple requests for the release of freezing orders either to chambers of the ICC or in national jurisdictions.

The Registry has stated that it needed guidance from Trial Chamber III that tried Bemba in his main case as to whether notification to the states of the closure of proceedings following Bemba’s acquittal would mean that orders to freeze the assets would be null and void.

But the defense counters that, had the Registry believed that it required a judicial order before moving to unfreeze Bemba’s assets, it should have filed an application to this end the moment Bemba was acquitted.

Defense lawyers also argue that Trial Chamber III, which imposed the freezing order, has no jurisdiction to enforce a fine issued by Trial Chamber VII in the different, witness tampering, case. According to Haynes, by suggesting that Trial Chamber III can delay or refuse to order the lifting of the freezing orders due to the fine issued by another Chamber, the Registry is asking that the judges act illegally.

The defense says the Registry is wrong to suggest that the remedy for non‐payment of a fine for witness tampering could be the continued freezing of assets preserved for reparations in the main case, in which Bemba was acquitted of war crimes and crimes against humanity.

Haynes argued that, under Rule 146(5) of the Rules of Procedure and Evidence, if Bemba willfully failed to pay any fine, the consequence would be a term of imprisonment. He added that, as the Registry is intended to play a neutral role within the ICC, “concerning itself in this way with the enforcement of criminal penalties is scarcely consonant with that role.”

Defense lawyers have also rejected the Registry suggestions that the value of the frozen property could be lower than what Bemba owes the court. None of the filings made public states how much Bemba owes the court as of October 2018. Defense lawyers also question the value the Registry attached to one of Bemba’s assets, whose particulars are deducted from public filings.

Haynes cited Bemba’s record of cooperating with the Registry on the location of his assets and payments of his debts, as evidence that he would not renege on his debts. He said that in May 2014, €2 million was transferred to the Registry from Bemba’s bank account in Cape Verde, which had not been frozen since Cape Verde was not a state party to the Rome Statute. He added that this transfer required Bemba’s cooperation and the amount paid at the time was more than what the court had advanced to his lawyers.

Meanwhile, defense lawyers also said Bemba was unable to obtain a telephone contract, internet connection, buy an airplane ticket, or lease a car because he lacked a bank account. This was hindering his reinsertion into society after 10 years of incarceration, they said.

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