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Lubanga to be Released: Transcript Of Judges' Order (unofficial)

Judges at the International Criminal Court (ICC) today ordered the release of former Congolese rebel leader Thomas Lubanga who has been on trial since January last year. Mr. Lubanga is accused of recruiting, conscripting and using child soldiers in armed conflict in the Democratic Republic of Congo during 2002 and 2003. But judges say the failure by prosecutors to honor orders issued last week by judges made it no longer possible for the accused to have a fair trial. Below is the unofficial transcript of the release order delivered today by presiding Judge Adrian Fulford:

“This is the second occasion on which the Chamber has stayed these proceedings because of the Prosecution’s abuse of the process. The first was on the 13th of June 2008 when Chamber decided that a fair trial of the accused was not possible given the material non-disclosure by the Prosecutor of potentially exculpatory materials which the Chamber was told were covered by confidentiality agreements entered into pursuant to article 54 (3)e of the Rome Statute.

On that earlier occasion, having imposed the stay, the Chamber granted leave to appeal on the 2nd of July 2008 and proceeded to order the accused’s release on the basis that under article 58 (1)b of the statute his detention prior to the commencement of the trial can only be justified if it is necessary to ensure his appearance at trial, to ensure he does not obstruct or endanger the investigations or the court proceedings, or where it is necessary to prevent a person from continuing with the commission of crimes within the jurisdiction of the court arising out of the same circumstances.

The Chamber ordered Mr. Lubanga’s unconditional release subject to rule 185 of the Rules of Procedure and Evidence given that in Chamber’s estimation a fair trial of the accused was impossible and the entire justification for his detention had been removed save that it delayed the implementation of the order  by five days in order to protect the prosecution’s appellant rights and if an appeal was lodged, the Chamber ordered the further delay of the order for release pending a decision by the appeals chamber on whether or not to suspend the order for release (if suspensive effect was requested in the application for leave to appeal).

This decision was the subject of revision by the appeals chamber on the 21st of October 2008 in the sense that the appeals chamber decided that the trial chamber should have considered the full range of options up to and including unrestricted release as available to it particularly when a conditional stay is imposed.

The appeals chamber emphasized that with an event of this kind, the Chamber is not expected to delay considering the accused’s detention, until after the conclusion of the substantive appeal. As regards the instant stay of proceedings, the prosecution has indicated that it will apply for suspensive effect if leave to appeal is granted.

In those circumstances, the Chamber is at this stage asked to take no further steps in the proceedings and including by way of considering the issue of his detention until it has resolved the application for leave to appeal and if granted, the appeals chamber has resolved the issue of suspensive effect.

The arguments in support of these propositions focus on the need to avoid unnecessary prejudice, to avoid waste of the court’s resources on the proceedings which may be rendered moot if leave and suspensive effect are granted, and generally to prevent unnecessary litigation.

The Prosecution seeks to distinguish this stay of proceedings from the earlier stay principally on the basis, as it is argued, that the Chamber envisaged that this stay is only temporary. In support of that argument, the prosecution relies on paragraph 31 of the decision imposing stay in which the expression ‘whilst the stay is in place’ appears. In argument before us this afternoon, counsel for the prosecution has suggested that our decision imposing the stay was a conditional order. In addition, it is contended that the delay will not be extensive, a period of two months has been alluded to, as a time period within which the appeals chamber may be able to determine the substantive appeal. For its part, the OPCV (The Office of Public Counsel for Victims) has focused on the appeals chamber judgment to which reference has been already made and particularly to the possible dangers to victims if the accused is released, and those submissions are advanced against the background that these are on any view serious charges which remain in existence even if in abeyance.

Analysis: Focusing therefore on the issue of the accused’s continued detention, the present circumstances are essentially indistinguishable from the situation that confronted the Chamber in July 2008. The Chamber has again decided that the prosecution has materially breached one of its fundamental obligations leading to the conclusion that the fair trial of the accused is thereby rendered impossible. The Prosecutor has not applied to lift the stay and instead the OTP has indicated that “the Prosecutor…  has made a determination that the prosecution would rather face adverse consequences in its litigation than expose a person to risk on account of prior interaction with this Office”.

On that basis it is wholly unclear what the result will be if the appeals chamber upholds the impuned decision and particularly on the basis of the written submissions by the Prosecution it is by no means certain that compliance with court orders will in those circumstances be assured. Therefore, this cannot be described as necessarily constituting a temporary stay nor has it been imposed conditionally. As just rehearsed, the Prosecution has not applied to lift the stay but instead has elected to exercise its appellate rights. In these circumstances, whether this trial will continue at some stage in the future is essentially unknown and the future of the case will depend inter alia on the eventual decision of the appeals chamber and potentially on the attitude of the Prosecution thereafter. However, other matters may in due course arise for consideration.

The Chamber can only address the present situation. The trial has been halted because it is no longer fair and the accused cannot be held in preventative custody on a speculative basis namely that at some stage in the future, the proceedings may be resurrected. As set out above, the appeals chamber addressed the issue of the circumstances in which an accused should be released and particularly whether his release ought to be the subject of restrictions, in its judgment of the 21st of October 2008, in which it observed that the trial chamber must take into account, inter alia, the conditional nature of the stay if that is the situation, when considering unconditional release.  And, moreover, it should consider all the available options at its disposal.

Given as just set out, the Chamber has imposed an unconditional stay of proceedings, and bearing in mind the wholesale uncertainty of whether this case will restart at some future time, together with the length of time the accused has already been in custody, anything other than unrestricted release will be unfair. The accused therefore shall be released unconditionally save for the following: this order shall not be enforced until the five-day time limit for an appeal has expired. If an appeal is filed within the five-day time limit against this order granting release and if a request is made to suspend its effect, the accused shall not leave detention until the appeals chamber has resolved whether this order granting release is to be suspended. In any event, the order releasing the accused shall only be implemented after arrangements have been made for his transfer to a state that is obliged to receive him. See rule 185 of the rules of procedure and evidence.”