On 15 July 2010 Trial Chamber I at the International Criminal Court (ICC) ordered that Thomas Lubanga is to be released, as there are no longer grounds to keep him in detention. The Trial Chamber held that Lubanga, whose trial was stayed due to fair trial concerns, could not be held in preventative detention on the grounds that the trial could be revived at some time in the future.

On 8 July 2010, Trial Chamber I ordered a stay of proceedings after the Chamber considered that the fair trial of the accused is no longer possible due to non-implementation of the Chamber’s orders by the Prosecution. The Chamber had ordered the Office of the Prosecutor to confidentially disclose to the Defence the names and other necessary identifying information, of ‘intermediary 143’. In its ruling, the Chamber held that “in order for the Chamber to ensure that the accused receives a fair trial, it is necessary that its orders, decisions and rulings are respected, unless and until they are overturned on appeal, or suspended by order of the Court”.

The Trial Chamber delayed the implementation of its decision to release Lubanga until after the five-day period in which to file an appeal, and then after the decision is resolved by the Appeals Chamber. Presiding Judge Fulford also noted that an order releasing the accused shall only be put into effect after arrangements have been made for his transfer to a state.

The Trial Chamber, in an oral decision, granted a Prosecution request for leave to appeal the stay of proceedings. However, the Prosecution has not appealed the two orders with which it has refused to comply. The Chamber noted that the Prosecution continues be to in non-compliance with its orders. However, it decided to adjourn any action under article 71 of the Statute, dealing with misconduct before the Court, until the Appeals Chamber’s judgment on this appeal.