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Bemba Lays Out Arguments in Appeal Against “Excessive Sentence” for Witness Tampering

Jean-Pierre Bemba’s lawyers have filed an appeal against what they term the unfair and disproportionate sentence handed to him by International Criminal Court (ICC) judges for witness tampering. Last September, judges handed the former Congolese vice president a one-year prison sentence, which he did not serve since he had spent a longer period in detention during the trial, and a fine of €300,000 for tampering with witnesses.

In a December 17, 2018 appeal brief, defense lawyer Melinda Taylor argued that trial judges imposed a sentence that contravened legal tests set by the Appeals Chamber. She claimed Bemba’s right to a fair and impartial trial was violated and that he was handed “a manifestly excessive and disproportionate sentence.”

The defense is asking the appeals chamber to quash Bemba’s conviction and sentence, and to ensure that no further punitive measures are imposed on him beyond the time he already spent in ICC detention. Taylor said Bemba was detained for more than four times the length of the sentence handed to him. This “unreasonable and unnecessary prolongation of his detention” occurred without any effective judicial oversight or possibility for redress, she adds.

Last June, Bemba was acquitted of war crimes and crimes against humanity. He was released from ICC detention on June 12, 2018, 10 years after his arrest over crimes committed by his troops in the Central African Republic during 2002 and 2003. However, three months later he was handed a sentence in a separate trial for witness tampering, in which he had been convicted in October 2016.

Taylor also questioned why the sentence handed down last September is the same as that which Trial Chamber VII initially pronounced in 2017, even though in March 2018 the Appeals Chamber acquitted Bemba of one-third of the charges.

While ordering the re-sentencing, the Appeals Chamber stated that the trial judges’ initial sentencing decision was unclear on why a lower sentence was imposed on Bemba for soliciting false testimony compared to the higher sentence for corruptly influencing a witness. It also found that the criteria trial judges used to assess the gravity of the offences was unsuitable. Consequently, the appeals chamber directed the trial chamber to issue a fact-specific determination of the harm caused by the false testimony. The defense claimed the trial chamber failed to do this in the re-sentencing.

Moreover, the defense said judges failed to heed the appeals chamber’s directive to issue a concrete determination of the degree of Bemba’s participation and the harm caused by his conduct. As a result, argued the defense, judges imposed a disproportionate sentence on Bemba that bore no correlation to the “limited findings” concerning the nature and degree of his participation in the offenses, and the description of his culpability.

The defense also faults judges for imposing a fine it claims was calculated based on Bemba’s solvency and not his culpability. Taylor suggests that if any penalty were to be imposed on Bemba, “the appropriate sentence would be a reasonable fine tailored to his culpability.” She suggests a figure of €30,000, which is one-tenth of what judges imposed.

She also argues that, given the similarity between the custodial sentences imposed on Bemba and his former lawyer Aimé Kilolo Musamba, the disparity between the fines handed to them is “facially illogical, and discriminatory.” Kilolo was handed a prison sentence of 11 months (but after deducting the time he spent in pre-trial detention, the chamber considered the sentence as served) plus a fine of €30,000.

According to Taylor, given the magnitude and nature of errors committed during re-sentencing, the only remedy is to quash Bemba’s conviction immediately, or after receiving submissions pursuant to Article 82(1)(b) of the Rome Statute. This article grants powers to the prosecution and the defense to appeal a decision granting or denying release of the person being investigated or prosecuted.

The defense raised various fair trial issues and claimed Bemba’s right to a fair and impartial trial was violated. It submitted that judges abused their discretion and erred in law by failing to stay the proceedings, discharge Bemba, or provide a remedy to “the cumulative impact of egregious violations” of his rights. Examples cited include Bemba’s “unreasonable and arbitrary length of detention” and the “highly prejudicial and inflammatory statements” by the prosecution.

According to the defense, following Bemba’s acquittal, the Trial Chamber granted the prosecution “wide latitude” to attack the validity and legitimacy of the acquittal and failed to deprecate the prosecution or remedy the impact on Bemba’s rights.

Taylor contended that the prosecution’s antipathy to Bemba’s acquittal built “to such a crescendo that it is impossible to believe that any Chamber could now impose a fair and impartial sentence.”