Article 85 Chamber to hear Blé Goudé’s compensation claim

By Waceke Njoroge

Three judges will hear a compensation request that Ivorian Charles Blé Goudé, who was acquitted of crimes against humanity, has filed before the International Criminal Court.

The Presidency of the ICC has announced that judges Reine Alapini-Gansou, Joanna Korner, and Sergio Gerardo Ugalde Gordínez will constitute the Article 85 Chamber that will consider the request filed on September 9, 2021.

Blé Goudé filed his request pursuant to Article 85 of the Rome Statute, for alleged wrongful prosecution amounting to grave and manifest miscarriage of justice for crimes he was accused of committing in Ivory Coast in 2010 and 2011. He was charged with former Ivory Coast President Laurent Gbagbo.

The Presidency, composed of judges Piotr Hofmański (president), Luz del Carmen Ibanez Carranza (first vice-president), and Antoine Kesia-Mbe Mindua (second vice-president), explained that it had unanimously decided that a new chamber, and not a pre-existing one, hear the suit because of the heavy current and anticipated workload at the ICC.

The judges also cited Rule 173(1) of the Rules of Procedure and Evidence, which states that the judges of such a chamber “…shall not have participated in any earlier judgment of the court regarding the person making the request…”  as having had a bearing on the choice of judges for the chamber.

The Presidency said it had found it necessary to call Judge Gordínez to serve on a full-time basis as it considered the existing judicial resources at the court insufficient to meet the needs in the case. The Presidency said Blé Goudé first filed a notice of his intention to request compensation on June 23, 2021. It said it could not grant his request to designate a chamber to consider the claim because the request failed to meet the procedural requirements at that stage.

“Where the court finds that a grave and manifest miscarriage of justice has occurred, the judges may, at their discretion, award compensation to an acquitted person after his detention,” said Blé Goudé’s legal counsel, Geert-Jan Alexander Knoops and Claver Nery Kouadiom, quoting Article 85.

He is claiming 819,300 euros or the alternative amount of 381,900 euros, depending on the number of days the court may consider he suffered the injury. His lawyers said the calculation for compensation was based on the figures allowed by the courts in his host state, the Netherlands, multiplied by three. He stated that he would use part of the proceeds from the compensation, if the court ruled in his favour, to assist the victims of post-election violence in Ivory Coast.

The former youth leader claimed to have suffered a miscarriage of justice, which has had a serious impact on his personal life, with his family far away from him, and his professional life as his political life was put on hold.

Blé Goudé’s is the fourth compensation and reparation claim that has come before the ICC. None of the first three was successful. One claim was filed in August 2015 by former Congolese militia leader Mathieu Ngudjolo after the ICC Appeals Chamber upheld his acquittal. He claimed unlawful arrest and detention, and a grave miscarriage of justice.

Ngudjolo, who had been in the court’s detention since February 2008 and was charged with war crimes and crimes against humanity, allegedly committed in Bogoro village in eastern Democratic Republic of Congo a decade earlier, was acquitted in December 2012 for insufficient evidence. Trial Chamber II turned down his compensation claim four months after he made the request.

Another claim was lodged in April 2015 by Jean-Jacques Mangenda Kabongo, a former case manager for Jean-Pierre Bemba in his trial at the ICC for war crimes and crimes against humanity. On October 21, 2014, a judge ordered Mangenda’s release pending his trial for allegedly corrupting witnesses. However, he remained in detention for nine more days.

Trial Chamber VI rejected his request for compensation for unlawful detention, refusing to allow the defence to respond to the prosecution’s submissions. It did not hold an oral hearing on the compensation claim.

Bemba filed a compensation and damages claim for miscarriage of justice and damage to his property. His request failed before Pre-Trial Chamber II in May 2019.

Blé Goudé’s defence has accused the Prosecutor’s office of failing to conduct thorough investigations and exercising due diligence in the investigation and prosecution of his case. The lawyers added that the foundation of Trial Chamber I’s decision to acquit was not just the weakness of the prosecution’s case, which they said was common to all “no case to answer” (NCTA) decisions, but its exceptional weakness coupled with the improper investigation that was conducted.

They quoted the written reasons of judges Geoffrey A. Henderson and Cuno Tarfusser, which criticised the prosecution.

The judges detailed the prosecution’s shortcomings with respect to the collection of documents, lack of probative value of most of the prosecution’s evidence, and the narrative of the prosecution. The lawyers pointed out that the sentiments were confirmed in the Appeals Chamber, where the acquittal decision made by Trial Chamber I was upheld.

Blé Goudé was surrendered to the ICC on March 22, 2014, after his arrest in Ghana on January 17, 2013. The court had on December 21, 2011 issued a warrant for his arrest and he was held at the Detention Centre in The Hague. He was charged with bearing individual criminal responsibility, as an indirect co-perpetrator, for four counts of crimes against humanity, namely murder; rape and other forms of sexual violence; persecution; and other inhuman acts, allegedly committed in the territory of Ivory Coast between December 16, 2010 and April 12, 2011.

Ivory Coast was plunged into violence after Gbagbo refused to accept defeat in the 2010 presidential elections. The ensuing conflict claimed more than 3,000 lives. More than 200,000 people fled the country.

The arrest warrant against Blé Goudé was one of three that the ICC issued in the context of its investigation in Ivory Coast. The other warrants were former President Laurent Gbagbo and former Ivorian First Lady Simone Gbagbo.

On January 15, 2019, Trial Chamber I, by majority, acquitted Blé Goudé of all charges, pursuant to a NCTA motion filed by the defence on August 3, 2018. The Appeals Chamber confirmed the decision to acquit on March 31, 2021, and revoked all the conditions that had been set on his release.

Despite their ICC acquittals, both Gbagbo and Blé Goudé were convicted in absentia in Ivory Coast and sentenced to 20 years for looting the local branch of the Central Bank of the West African States. While the government has now made it clear that the sentence against Gbagbo will be dropped, it has said nothing about Blé Goudé’s sentence.