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Judges Decline to Reduce Bemba’s Sentence for Witness Tampering

The Appeals Chamber at the International Criminal Court (ICC) has dismissed a request by Jean-Pierre Bemba for his sentence for witnesses tampering to be quashed or reduced. In a ruling on Wednesday, appeals judges confirmed his 12-month sentence and fine of €300,000 that was earlier handed to him.

All the grounds of Bemba’s appeal were rejected unanimously by the chamber composed of judges Howard Morrison, Chile Eboe-Osuji, Piotr Hofmański, Luz del Carmen Ibáñez Carranza, and Solomy Balungi Bossa. The chamber determined that the trial chamber did not impose a disproportionate sentence on Bemba and said none of his rights were violated.

In his submission, Bemba argued first that the trial chamber did not comply with the directions given by appeals judges on determining his new sentence. Second, he claimed that the chamber erred by failing to remedy the cumulative impact of violations of his rights. Thirdly, Bemba argued that the trial chamber had imposed a disproportionate sentence and fine that exceeded the level of his culpability.

Bemba, along with two of his lawyers and two other aides, were convicted in October 2016 for witness tampering. He was handed a 12-month prison sentence and a fine of €300,000. He appealed, and the Appeals Chamber overturned his conviction for presenting false oral testimony but maintained the convictions for corruptly influencing 14 witnesses and soliciting them to give false evidence. In addition, the Appeals Chamber ordered the trial chamber to sentence Bemba afresh. He received the same sentence as that handed down earlier.

Three months ago, the Appeals Chamber summarily dismissed some elements of Bemba’s latest appeal, namely a request for reversal of his convictions; arguments for reversal or amendment of findings made in the conviction decision; and challenges to the evidentiary regime which the trial chamber adopted in the conviction proceedings.

In the latest ruling, the appeals judges said the sentence handed to Bemba was proportionate and well-reasoned. They stated that, as the trial chamber reasoned, Bemba’s sentence was based on his position and role in the common plan to tamper with witnesses, as well as his contribution to the offenses.

As for Bemba’s argument that there is no basis for any further sanctions on him given the length of his detention, appeals judges said this was merely a repetition of the unsuccessful contention he made before the trial chamber, without showing any error in the trial chamber’s reasoning and findings.

Bemba’s lawyers also argued 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 was “facially illogical, and discriminatory.” Kilolo was handed a prison sentence of 11 months plus a fine of €30,000.

On this issue, appeals judges noted sentences imposed on the persons convicted in this case were fact-specific and based on their individual circumstances. It was therefore unhelpful to compare the sentences imposed on different convicted persons without reference to the specific facts and individual circumstances of each person. They added that the trial chamber considered specifically the varying degree of participation in the execution of the offenses as a relevant sentencing factor.

The defense also argued that trial judges erred by assessing the amount of Bemba’s fine on the basis of his means rather than his culpability. At the time of the sentencing, trial judges explained that because Bemba had “considerably more means” than Kilolo, his “substantially higher fine was expected to have “equivalent deterrent effect.”

In this week’s ruling, the Appeals Chamber held that it is not an error to consider solvency as a relevant factor for the determination of a fine. “Solvency is a relevant consideration in numerous jurisdictions and its underlying rationale is the need to ensure a deterrent effect,” states the ruling.

Among the arguments Bemba made was that he should have sentence reduced because of the prejudice suffered in his main trial, including his detention for a decade and eventual acquittal. However, the Appeals Chamber found that Bemba failed to provide any persuasive argument or authority to support his proposition that a convicted person can seek remedies with respect to arbitrary or excessive detention in one case, while the person is also detained in another case.

Similarly, the Appeals Chamber said it was not persuaded that Bemba could reasonably claim a violation of his right to be released in the witnesses tampering case. This is because, until his acquittal on June 8, 2018, he was detained in the main case firstly on the basis of various decisions on detention, and secondly because of the sentence imposed after his now-overturned conviction for war crimes and crimes against humanity.

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