International Criminal Court : The Appeals Chamber Reversed the Decisions to Stay Proceedings and to Release Thomas Lubanga Dyilo
In accordance with this decision, Mr Lubanga Dyilo will remain in the
custody of the Court during the trial proceedings, which can now be
resumed.
Trial Chamber I of the ICC had, on 8 July, 2010, ordered to stay the
proceedings in the case against Thomas Lubanga Dyilo, considering that
the fair trial of the accused was no longer possible because the
Prosecution had failed to implement the Chamber’s orders.
Trial Chamber I had ordered the Office of the Prosecutor to
confidentially disclose to the Defence the names and other necessary
identifying information, of intermediary 143. The Prosecution, however,
did not comply with these orders. Following the decision to stay the
proceedings, Trial Chamber I ordered, on 15 July, the release of the
accused. The ICC Prosecutor submitted two appeals against these
decisions.
Judge Song, presiding judge in these appeals, delivered a summary of
the judgments in open court, and explained that the Appeals Chamber
rejects two arguments of the Prosecutor, namely that the Trial Chamber
erred when it found that the Prosecutor refused to comply with the
Chamber’s orders and that the Trial Chamber misconstrued the
Prosecutor’s position with respect to his duties of protecting victims,
witnesses and others.
In his oral summary of the judgments, Judge Song stressed that it is
undisputed that the Prosecutor did not comply with the orders to
disclose the identity of intermediary 143 while ‘orders of the Chambers
are binding and should be treated as such by all parties and
participants unless and until they are suspended by the Appeals
Chamber’.
The presiding judge also highlighted that ‘under the Statute, the
Trial Chamber, subject only to the powers of the Appeals Chamber, is the
ultimate guardian of a fair and expeditious trial’.
The Appeals Chamber considers, however, that the Trial Chamber erred
by resorting immediately to a stay of proceedings without first imposing
sanctions to bring about the Prosecutor’s compliance with its orders.
‘Sanctions are a key tool for Chambers to maintain control of
proceedings within the trial framework and to safeguard a fair trial
without having to have recourse to the drastic remedy of staying
proceedings’, stated Judge Song in the summary of the judgments.
Finally, the Appeals Chamber also finds that the decision to release
Mr Lubanga Dyilo was predicated entirely on the decision to stay
proceedings, which is reversed, thus the decision to release the accused
must also be reversed.
Thomas Lubanga Dyilo is accused of having committed, as
co-perpetrator, war crimes of enlisting and conscripting children under
the age of 15 years into the Forces patriotiques pour la libération du
Congo (Patriotic Forces for the Liberation of Congo) (FPLC), and using
them to participate actively in hostilities in Ituri, a district of the
eastern province of the Democratic Republic of the Congo (DRC), between
September 2002 and August 2003.empty body
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