The Appeals Chamber of the International Criminal Court says Article 74 of the Statute applied to decisions granting motions for no case to answer which resulted in the acquittal of the former Ivorian President Laurent Gbagbo.

The Court in its key findings on the Appeal filed by the Prosecutor against his acquittal said Article 81 was the provision that governed an Appeal by the Prosecutor against such decisions.

This judgment concerns an Appeal filed by the Prosecutor against the acquittal by a majority of Trial Chamber I, on 15 January 2019, of Mr Gbagbo and former Minister, Mr Charles Blé Goudé.

It said the separation of verdict and reasons did not entail a violation of article 74(5) of the Statute.

The Five-Member Appeals Chamber Presided over by Judge Chile Eboe-Osuji said there might, on the contrary, be clear justification for such separation in the particular circumstances of a case; most obviously in this regard was when the liberty of the person in question was at stake.

He said release must necessarily follow a definitive decision to acquit as such a decision meant that the reason for detention had fallen away and, subject to exceptional circumstances being established, as referred to in article 81(3)(c)(i) of the Statute, acquitted persons shall be released immediately.

Mr Eboe-Osuji said Article 74(5) of the Statute clearly required that decisions issued pursuant to article 74 should be in writing.

“All components of this decision must be issued in writing –both the operative part (the verdict) and the reasons,” the Judge said.

He said in the event of a motion for a finding of no case to answer, the test that guided the trial chamber’s decision might be expressed as follows: upon the conclusion of the evidence presented by the prosecution (and on behalf of the victims, as appropriate), the trial chamber shall acquit the defendant or, as the case may be, dismiss one or more of the charges, where the evidence thus far presented was insufficient in law to sustain a conviction on one or more of the charges.

Mr Eboe-Osuji said it was only when the evidence had satisfied the standard of proof beyond reasonable doubt that it could be said to have been ‘sufficient to sustain a conviction’, or ‘capable of supporting a conviction.’

He said in the assessment of the evidence for purposes of a no case to answer motion, the trial chamber was not precluded from sensibly weighing credibility and reliability of the evidence thus far presented, in order to satisfy the applicable standard of proof.

The Prosecutor’s Appeal, which comprised of two grounds, alleged that the Trial Chamber committed both errors of law and procedure; it was supported by the victims participating in the Appeal and it is contested in full by both acquitted persons.

The Trial Chamber’s decision to acquit Mr Gbagbo and Mr Blé Goudé came after completion of the Prosecutor’s case, and following motions by both persons that there was no case to answer based on the Prosecutor’s evidence presented to the Trial Chamber, and, therefore, no need for the case to proceed further.

Mr Gbagbo and Mr Blé Goudé were both released from detention in February 2019, the Appeals Chamber having attached conditions to their release.

Substantive filings in the Appeal were made in the course of 2019 and 2020 and a partially virtual Appeal hearing was held between 22 and 24 June 2020.

The Prosecutor raised two grounds of appeal; first ground of Appeal that the Majority erred by acquitting Mr Gbagbo and Mr Blé Goudé in violation of the mandatory requirements of article 74(5) of the Statute, or alternatively erred in the exercise of its discretion by doing so.

The second ground of Appeal was that the Majority erred in law and/or procedure by acquitting Mr Gbagbo and Mr Blé Goudé without properly articulating and consistently applying a clearly defined standard of proof and/or approach to assessing the sufficiency of evidence.

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