ICC halts proceedings against Lubanga 16 Jun 2008
Trial Chamber I at the ICC has scheduled a hearing for 24 June to consider whether to release Thomas Lubanga Dyilo after the Court imposed a stay on proceedings.

Thomas Lubanga DyiloIn a crucial decision released on Monday 16 June, Trial Chamber I at the International Criminal Court (ICC) imposed a stay on proceedings in the case of former Congolese war-lord Thomas Lubanga Dyilo.

The trial of Lubanga, who was the founder and president of the Union des patriotes congolais, had been due to begin on 23 June 2008. It is the first case before the ICC and concerns the situation in the Democratic Republic of the Congo (DRC).

The Trial Chamber’s decision of 13 June halting proceedings in the trial process came following the Defence’s submissions that the accused’s right to a fair trial had been violated. The Trial Chamber concluded that the Prosecution had incorrectly used a provision in the Rome Statute and as a result, a significant amount of exculpatory evidence was not disclosed to the Defence. Article 54 (3)(e) of the Rome Statute states that the Prosecution may agree not to disclose certain “documents or information … on the condition of confidentiality and solely for the purpose of generating new evidence”.

The judges concluded that the disclosure of exculpatory evidence in the possession of the Prosecution is a fundamental aspect of the accused’s right to fair trial. The Chamber found that the Prosecution had incorrectly used Article 54 (3)(e) when entering into agreements with ‘information-providers’. The result was that a significant body of exculpatory evidence (over 200 documents), which would otherwise have been disclosed to the accused, was withheld from the Defence. The Chamber concluded that this denial of information to Lubanga’s defence team inhibited the accused from properly preparing his defence. As a consequence, ‘the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial.’

The Trial Chamber decided to halt the trial process in all respects until—if ever—the stay is lifted. This can either be done by the Appeals Chamber or the Trial Chamber itself. In the meantime, a hearing is scheduled for 24 June at 14.00 in order to consider the release of the accused.

In making its decision, which is a severe setback for the Prosecution, the Trial Chamber stated that it imposed the stay of proceedings with “great reluctance” given the importance of the issues at stake.

On 17 March 2006, Lubanga became the first accused to be arrested and transferred to the ICC. On 29 January 2007, Pre-Trial Chamber I confirmed the charges against him.  Lubanga has been charged with war crimes on the basis of individual criminal responsibility and with enlisting and conscripting children under the age of 15 and using them to actively participate in hostilities. These crimes were allegedly committed in the Ituri region in the north-east of the DRC from September 2002 to August 2003.

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