ASEANEWS HEADLINE-COURTS & CRIME | MANILA, Philippines: ICC rejects Duterte interim release plea

Duterte family accepts ruling with ‘peaceful hearts’

MANILA, Philippines — Former president Rodrigo Duterte will remain in detention in the Netherlands, after appeals judges of the International Criminal Court (ICC) yesterday rejected the appeal on his request for interim release.

The ICC Appeals Chamber issued in open court its unanimous decision denying the appeal lodged by Duterte’s lawyers against the earlier decision of pre-trial judges that denied his request for conditional release to another country.

The decision was read by Judge Luz del Carmen Ibáñez Carranza, who was appointed presiding judge for Duterte’s appeal on interim release.

“The Appeals Chamber notes that the Pre-Trial Chamber reached its conclusions in relation to the risks… on the basis of a comprehensive assessment of the information before it,” Carranza said.

“In the present case, having rejected the three grounds of appeal presented by the defense in the appeal brief, the Appeals Chamber unanimously confirms the impugned decision,” she added, referring to the Sept. 26 decision of the Pre-Trial Chamber I that rejected Duterte’s interim release request.

The defense team raised three grounds in its appeal: that the pre-trial judges erroneously found that the former president poses a risk, that it erred in its rejection of the guarantees proposed by the state willing to receive him and that it failed to take into account humanitarian considerations in assessing the right to interim release.

But the five-member Appeals Chamber, which is composed of a different set of judges, said the defense failed to identify errors in the assailed decision.

The other members of the chamber include Judge Tomoko Akane, also ICC president; and Judges Solomy Balungi Bossa, Gocha Lordkipanidze and Erdenebalsuren Damdin.

Duterte was not present during the hearing and was represented by his counsel Nicholas Kaufman.

The former president earlier signed a document waiving his right to appear, in person or virtually, during the reading of the judgment.

He has been detained at the ICC Detention Center within the Dutch prison complex in Scheveningen, located in the outskirts of The Hague, since his surrender to the international tribunal on March 12.

Duterte was last seen by the public on March 14, when he appeared via video link during his initial appearance hearing before the ICC Pre-Trial Chamber I. His family and lawyers have regularly visited him in the detention facility.

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Flight risk

In its Sept. 26 decision rejecting Duterte’s request for interim release, the ICC Pre-Trial Chamber I ruled that the former president remains a flight risk and could pose a threat to potential witnesses.

The judges also cited the risk that he would continue committing the crimes charged against him should he be released from detention.

“The continued detention of Mr. Duterte is justified at this stage of the proceedings in order to ensure that the suspect does not obstruct or endanger the investigation or the Court’s proceedings,” read the original decision signed by Judges Iulia Antoanella Motoc, Reine Adélaïde Sophie Alapini-Gansou and María del Socorro Flores Liera.

“The Chamber is of the view that, contrary to the Defense’s assertion, there exists a risk that, should he be released, Mr. Duterte will continue committing the crimes charged against him or related crimes within the Court’s jurisdiction,” it added.

The ruling specifically cited Duterte and his family’s criticism of his arrest and detention, including public speeches of Vice President Sara Duterte, who raised the idea of breaking her father out of the ICC Detention Center.

The judges also cited the former president’s political contacts and network of support in the Philippines, which they said could help him abscond and evade trial.

Omar Duterte, grandson of former president Rodrigo Duterte, addresses journalists outside the International Criminal Court in The Hague, the Netherlands as defense attorney Nicholas Kaufman (right photo) waits for the ICC to rule on the appeal for the provisional release of the former president./ AFP

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Appeal’s grounds

In the appeal brief submitted to the Appeals Chamber, Kaufman argued that the pre-trial judges “misapprehended the applicable legal standard” and relied heavily on possibilities.

He also challenged the use of statements made by Duterte’s families and supporters to justify his continued detention.

“It is legally and factually incorrect for the Pre-Trial Chamber to impute the actions or statements of third parties – whether it be his family, former associates or the general populace – to Mr. Duterte,” the defense’s appeal read.

“Criticism by Mr. Duterte’s family of the manner in which he was arrested (an opinion fully shared by the Defense) does not mean that members of the family would assist him to elude prosecution. Such a finding is unreasonable,” it added.

Kaufman also maintained that humanitarian considerations should have been taken into account by the pre-trial judges, in particular their claim that Duterte is already suffering from cognitive decline.

The issue of Duterte’s fitness to stand trial is the subject of another request filed by the defense.

Both the ICC Office of the Prosecutor and the Office of the Public Counsel for Victims (OCPV) supported the continued detention of the former president.

“Mr. Duterte’s three grounds of appeal fail to establish any legal or factual error. Rather, the Defense repeatedly expresses its mere disagreement with the decision, mischaracterizes and ignores the Chamber’s reasoning and misstates and misunderstands the applicable law. The Appeal should therefore be dismissed,” ICC deputy prosecutor Mame Mandiaye Niang said.

OCPV principal counsel Paolina Massidda, who represents victims in the proceedings, said the defense “misrepresented” the decision of the pre-trial judges.

“The Defense, first, indicates that Mr. Duterte is 80 years old, infirm and debilitated and it is quite cruel to detain him while he enjoys the presumption of innocence,” Massidda said in her submission.

“In this regard, the presumption of liberty does not mean that detention cannot be imposed where there exists a legal basis for doing so and, while the person subject to criminal proceedings shall enjoy the right to liberty, he or she may be deprived of that right as prescribed by law in a manner which is strictly necessary under the circumstances,” she added.

Duterte is facing crimes against humanity charges before the ICC in The Hague over the thousands of deaths tied to his drug war.

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Family statement

The Duterte family issued a statement accepting the decision of the ICC Appeals Chamber.

“The family accepts the ICC Appeals Chamber’s decision with peaceful hearts. We will continue to work with the defense team on the case and will keep supporting former president Rodrigo Duterte with our daily conversations. We thank everyone who prayed with us today,” the Duterte family in a statement said.Malacañang yesterday said it “respects” the ICC decision.“The International Criminal Court has already made its decision, and the Palace respects it,” Presidential Communications Undersecretary Claire Castro said in a statement.

‘Deserves to rot’

Meanwhile, the International Association of Democratic Lawyers (IADL) said yesterday that Duterte deserves to rot in jail for the crimes committed in his war on drugs.

IADL president Edre Olalia said the appeals chamber of the ICC was correct in junking Duterte’s bid for interim release.

“Mr. Duterte, you are not going anywhere,” Olalia said in a statement. “You are staying where you rightfully are.” — Diana Lhyd Suelto, Helen Flores, Emmanuel Tupas, Bella Cariaso