Jean-Pierre Bemba is seeking to gain access to all confidential records related to his assets and financial status that are in the possession of the Registry of the International Criminal Court (ICC). The records were filed in the Congolese opposition leader’s main trial in which he was convicted and handed an 18-year prison term. However, Melinda Taylor, who represents him in a separate trial over witness tampering, says these records are needed in preparing sentencing submissions.

In October 2016, Bemba was found guilty of giving false testimony and corruptly influencing witnesses. Trial judges handed him a one-year prison sentence and a €300,000 fine. Last month appeals judges upheld the conviction but reversed the sentence imposed on him and two of his former lawyers and directed the trial chamber to determine new sentences. In their ruling, appeals judges faulted the trial chamber for determining the gravity of the offenses using an “irrelevant consideration,” improperly reducing the sentences, and suspending the lawyers’ remaining terms of imprisonment.

Taylor argues that, in preparing for the new sentencing phase, it is necessary for the defense to have an accurate picture of the specific assets that have been attributed to Bemba and members of his household, the value of the assets, and the legal and factual basis for attributing ownership to specific persons.

The defense also needs to know how the assets are affected by the assets freeze imposed on Bemba by the court, if there are any legal impediments or debts to individuals or states, and whether the assets are capable of generating an income.

Taylor states that although some filings from the main trial were disclosed to the defense, “many were not, including filings that concern the basis for the Registry’s conclusions concerning the ownership of particular assets, and whether Mr. Bemba has the means to freely dispose of them.”

In an April 19, 2018 filing, prosecutor Fatou Bensouda says the defense request “is overly broad and fails to demonstrate a proper forensic purpose to justify such access.” She argues that the court was still undertaking “highly sensitive” financial investigations into the status of Bemba’s assets to recover “substantial dues” he owes the court or which may still need to be assessed. According to Bensouda, given Bemba’s non-cooperation with these investigations, their purpose would likely be defeated if he accessed this information. The prosecutor added that the trial chamber was obliged to ensure that Bemba’s assets were preserved and remained available for reparations.

Following Bemba’s arrest in 2008, the ICC found that he had the ability to pay his legal fees. However, due to a court ordered freezing of his assets, the court experienced problems in receiving funds from his accounts and the Registry started indirectly paying for his defense until repayment could be secured.  In July 2016, Bemba’s lawyers in the main case said a “substantial amount” of the advanced fees had been recovered after Bemba “assisted the Registry in the realization of some of his assets.”

However, in August 2016, Bemba reported difficulties in paying lawyers representing him in the witness tampering case due to a refusal by the Registry to advance him sufficient resources. Judges ordered the Registry to advance legal aid to Bemba until the court issued a final decision on his financial status.

Filings the defense is seeking include those accessible only to the Registry (referred to as category 1), those accessible to the Registry and the prosecution (category 2), and those the main case defense can access but not the Article 70 defense team.

Taylor argues that without access to the records, her team can not assess the reliability and accuracy of the calculations on Bemba’s financial status, which the Registry submitted in its Article 70 sentencing observations, or conduct meaningful consultations with Bemba and his family on assets that can easily and expeditiously be disposed of to fulfill judicial orders. This was because the Registry did not state the legal and factual basis for its conclusions on Bemba’s financial status.

The prosecution counters that Bemba’s lawyers incorrectly assume that he is still bound by Trial Chamber VII’s order to pay a fine as part of his sentence yet that order no longer stands. “Since Trial Chamber VII has yet to decide on Bemba’s new sentence (and in particular, whether such sentence will include a fine or not), Bemba’s claim that he requires additional information on his assets and financial status is, at the very least, premature,” argues the prosecution.

Furthermore, the prosecution says that contrary to Bemba’s argument, the trial chamber’s order on sentencing does not require submissions on the percentage or value of the convicted person’s assets that could be imposed as a fine. Rather, it only requires that submissions address the “amounts required to satisfy the financial needs of the convicted persons and their dependents.” According to the prosecution, trial judges need to ensure that any fine imposed on Bemba does not exceed 50 percent of his identifiable assets, after deducting an appropriate amount for his financial needs and those of his dependents.

Trial Chamber II judges Goeffrey Hendersen (presiding), Chang-ho Chung, and Kimberly Prost are yet to make a decision on the defense request.