On Tuesday 18 November, Trial Chamber I of the International Criminal Court (ICC) decided to lift the stay on proceedings in the case of Prosecutor v. Thomas Lubanga. The Chamber ruled that the reasons that led to the stay on proceedings on 13 June 2008 have “fallen away”.

Trial Chamber I later decided not to grant the release (nor provisional release) of Thomas Lubanga Dyilo. The accused will remain in the custody of the Court until the beginning of the trial which has been provisionally scheduled to start on Monday 26 January 2009. 

The full reasoning will be explained in a “written decision in due course”.

Stay on proceedings and release of Lubanga

The trial of Lubanga, the first trial scheduled to take place before the ICC, had been due to begin on 23 June 2008. However, Trial Chamber I imposed a stay on proceedings on 13 June 2008, concluding that the Prosecution had incorrectly used a provision in the Rome Statute. As a result, a significant amount of potentially exculpatory evidence was disclosed neither to the Defence nor to the judges.

On 2 July 2008, the Trial Chamber ordered Lubanga’s unconditional release, stating that the release was the ‘logical consequence’ of the stay on the proceedings. Lubanga was subsequently kept in custody pending the Prosecution’s appeal.

On 21 October 2008, the Appeals Chamber unanimously dismissed the Prosecution’s appeal and confirmed the stay of proceedings. However, it reversed the Trial Chamber’s decision regarding Lubanga’s release stating that the Trial Chamber’s decision for unconditional release was erroneous. The Appeals Chamber remanded the matter to the Trial Chamber for a new determination on the release of the accused.

“Complete and unfettered access”

During the Prosecution’s investigation of the present case, the Prosecutor obtained certain evidence pursuant to prior agreements in application of Article 54(3) of the Rome Statue, which prevents the disclosure of the acquired information. The Prosecutor relied on these prior agreements not to disclose the evidence to the Defence, even though some of the evidence was potentially exculpatory. The 13 June Decision on the stay of proceedings resulted from the fact that—because of these agreements—the Prosecutor was unable to disclose potentially exculpatory material.

On 14 October 2008, the Prosecutor filed a submission providing the Trial Chamber with all the undisclosed documents which were the object of the 13 June Decision on the stay of the proceedings. The Prosecutor specified that “the information providers now agree to allow both the Trial Chamber and the Appeals Chamber, complete and unfettered access to [the documents]”.

This decision to lift the stay on proceedings in the first case before the ICC occurs while the Assembly of State Parties to the Rome Statute is currently taking place in The Hague.

Press release: Stay of proceedings in the Lubanga case is lifted
Press release: Thomas Lubanga Dyilo will remain in custody